Who Can Claim Property Based on Adverse Possession in Florida?

Squatters, trespassers, and encroachers may, over time and by complying with the statute and paying taxes, gain ownership rights to Florida property.

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.

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 you've been using for so long that you feel you've developed a right to continue doing so, with full legal recognition.

How Adverse Possession Laws Function

Adverse possession is a centuries-old 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 law's function is usually to achieve a fair result when one owner has left a piece of property idle and unused, 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 (Fla. Stat. § 95.18) as well as 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, in other words ownership of, the land.

Florida's Requirements for Adverse Possession Without Color of Title

The standard sort of adverse possession in Florida is what's called "without color of title," meaning the trespasser has no reason to believe he or she owns the property. A successful claim will requires such a trespasser's possession of the land to 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. openly visible and notorious (using the property as the real owner would, without hiding one's occupancy)
    5. continuous for the statutory period (which is seven years in Florida under Fla. Stat. § 95.12), and
    6. protected by a substantial enclosure, cultivated, maintained, or improved.

In addition, the trespasser must have paid all outstanding taxes and special improvement liens levied against the property within one year of taking possession, and file paperwork with the Department of Revenue (a so-called "RETURN OF REAL PROPERTY IN ATTEMPT TO ESTABLISH ADVERSE POSSESSION WITHOUT COLOR OF TITLE").

These are unusually difficult standards to meet. Florida property owners can take heart: They are well-protected.

Florida's Requirements for Adverse Possession With Color of Title

Another section of Florida law, Fla. Stat. § 95.16, deals with situations where the trespasser actually believes that he or she owns the piece of land in question, and has a document to back this up.

The requirement for a successful claim includes that the trespasser has cultivated or improved the property or either protected it by a substantial enclosure or used it to supply fuel or fencing timber for husbandry or for the occupant's ordinary use.

Quelling Adverse Possession Claims

What should you do if you spot a trespasser or a neighbor encroaching on your Florida 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.

If that doesn't happen, put your demand in writing. Next, consider consulting a lawyer and bringing legal action to declare that you, and not the trespasser, are the true owner of the land. Obtaining a court order to this effect will be particularly helpful if you are seeking to sell your property, and need to reassure potential buyers.

No Claims Against Government Land

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 the required years. The state of Florida will still "own" it.

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