If you’re a property owner in the Sunshine State, you likely have several neighbors whose land borders yours. Hard to believe though it might be, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while possibly less likely, an unknown trespasser can also squat on your land and develop the same type of claim to legal ownership. Reports of squatters have been on the rise throughout Florida, particularly in the aftermath of the Great Recession and housing crisis.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, you should familiarize yourself with Florida’s adverse possession laws. Perhaps you yourself might even want to assert an adverse possession claim over land that you've been using for so long that you feel you've developed a right to continue doing so, with full legal recognition.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over the land of a property owner. The concept dates back to early Britain. More recently, the law’s function is usually to achieve a fair result when one owner has neglected or forgotten about a piece of property while another has been using or caring for it for so long that to make him or her leave would create hardship.
Adverse possession in Florida is controlled by state statute, but also by the courts. Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. Whoever holds legal title is presumed to be the owner until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove that a judge should grant him or her legal title to -- that is, ownership of -- the land.
There is no single statute in Florida that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors, over many decades of making decisions in individual cases.
As in most states, adverse possession in Florida depends on the nature of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period (which is seven years in Florida under Fla. Stat. Ann. § 95.12).
For example, imagine that Mike and Molly live next to one another in Orlando. There is no dividing fence, line of trees, or other obvious boundary between their yards. Mike builds a gazebo that is actually on Molly’s side of the property, covering about ten square feet of earth. Molly doesn’t say anything. Mike uses the gazebo as if it were on his own land. He does this for seven years. Under the rubric described above, Mike can probably establish that he “owns” the land on which he was encroaching. Molly could have stopped Mike by asking, over those seven years, that he remove his gazebo, or sign a rental agreement to make clear that the use was with permission, rather than hostile. But Florida courts won’t let her suddenly eject Mike after she failed to exercise her rights for so many years.
The Florida doctrine of adverse possession protects a person who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title. In other words, in Florida, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required 20 years that is exclusive, continuous, hostile, actual, and open – even if under a mistaken claim of title – is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Mike built the gazebo knowing that he was on Molly’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
What should you do if you spot a trespasser or a neighbor encroaching on your land? Chances are, it’s an innocent mistake on that person's part. Given that, your first step should be to nicely ask the person to move. More often than not, the person will comply.
If that doesn’t happen, you may be forced to consult a lawyer and bring an action to quiet title – a legal method for determining title to land. In an action to quiet title, you’re asking a Florida state court judge to issue an order declaring that you, and not the trespasser, are the true owner of the land. This order is particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.
Land held by Florida’s state and municipal government entities are generally immune from adverse possession actions. In other words, title to public lands usually can’t be acquired by adverse possession. So, if you live next to an unused state park in Jacksonville, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting 20 years. The state of Florida will still “own” it.