Adverse Possession is a powerful legal doctrine by which a person may acquire title to real property that was owned by another person by, as the name suggests, taking possession of the property for a period of at least seven years, and claiming it as his or her own (adversely to the claim of the prior owner). Claims of adverse possession are often raised in the context of a boundary line dispute, in which two neighbors are fighting over the location of the boundary line between their two properties. However, under Florida Law, because the requirements for establishing Adverse Possession are very specific and quite demanding, Adverse Possession rarely applies in Florida.
So, for example, it is not uncommon for two neighbors to discover, often years after a fence has been installed, that one neighbor’s fence has been installed on the other neighbor’s side of the boundary line between the two properties. The neighbors may then get into a dispute with one another about where the boundary line between their two properties is actually located.
In such a dispute, Neighbor A may believe that Neighbor B has installed a fence beyond the property line, in which case Neighbor B’s fence would be located on Neighbor A’s property. If the fence has been in place long enough, then Neighbor B may try to argue that he or she is allowed to keep the fence where it is because he or she now owns the portion of Neighbor A’s property that is located on Neighbor B’s side of the fence line, based on Adverse Possession.
However, Adverse Possession has some very specific and quite demanding requirements which are very rarely met. As a result, while Adverse Possession is often raised as an argument in a situation like the one described above, it is not often a winning argument, for the reasons discussed below.
In Florida, Adverse Possession is governed by Florida Statutes Section 95.16 and Section 95.18, and there are two types of Adverse Possession.
The first type of Adverse Possession, in Florida, is known as Adverse Possession Under Color of Title. Color of Title refers to the fact that in order to qualify for this type of Adverse Possession, the possessor of the property (Neighbor B) must have first obtained a deed, or other legal document, which includes within its legal description the portion of Neighbor A’s property that Neighbor B claims to adversely possess (the legal description is the part of the deed that describes the extent of the property conveyed by that deed). Neighbor B’s deed must also be recorded in the official records of the county.
Usually, this situation would only occur if Neighbor B has a deed whose legal description overlapped with the legal description contained in Neighbor A’s deed. So, if Neighbor A and Neighbor B have overlapping deeds, such that part of Neighbor A’s property was also included in Neighbor B’s deed, then the question would arise, “Who owns the overlapping portion of the property, since both neighbors have a deed to that portion of the property?”
Initially, this question might be answered by looking into how each party acquired their deed. It is possible that the overlapping portion of the property was included in one of the deeds by mistake. However, even if the overlapping portion of the property was included in Neighbor B’s deed by mistake, if Adverse Possession applies, then Neighbor B will end up owning the overlapping portion of the property that was formerly owned by Neighbor A.
In order for Adverse Possession Under Color of Title to apply, (1) Neighbor B’s deed would have to include a description of a portion of Neighbor A’s property, (2) Neighbor B’s fence must enclose that same portion of Neighbor A’s property, and (3) Neighbor B’s fence must have enclosed that portion of Neighbor A’s property continuously for at least seven years. If all of these requirements are met, then Neighbor B could actually acquire legal title to the portion of Neighbor A’s property that is enclosed by Neighbor B’s fence.
However, usually boundary line disputes do not involve two deeds whose legal descriptions overlap, in which case both deeds include a description of the same property. Instead, boundary line disputes usually only involve a dispute about where the true boundary line between the two properties is actually located, on the ground. As a result, Adverse Possession Under Color of Title is typically not relevant to most boundary line disputes, because usually each neighbor’s deed only describes his or her own property, and not any portion of his or her neighbor’s property.
The second type of Adverse Possession, in Florida, is known as Adverse Possession Without Color of Title. As the name implies, to qualify for this type of Adverse Possession, the possessor of the property (Neighbor B) does not need to have a deed, or other legal document, describing the property in question. Even though no such legal document is required, the other requirements for Adverse Possession Without Color of Title are perhaps even less often satisfied than those that apply to Adverse Possession Under Color of Title.
The requirements to qualify for Adverse Possession Without Color of Title include the following: (1) Within 1 year after taking possession of the property, the possessor of the property (Neighbor B) must have paid all of the taxes owed on the portion of Neighbor A’s property that Neighbor B possesses; (2) Neighbor B must continue to pay all the taxes on the portion of Neighbor A’s property that Neighbor B possesses for the full seven-year adverse possession period; (3) Within 30 days after taking possession of the property, Neighbor B must have filed a tax return with the county property appraiser, on a form provided by the Florida Department of Revenue, which must include a proper legal description of the property that Neighbor B claims to adversely possess; and (4) Neighbor B must have obtained a survey of the portion of Neighbor A’s property that Neighbor B claims to adversely possess, in order to file the required tax return.
In addition, for Adverse Possession Without Color of Title to apply, the property appraiser must send notice to Neighbor A that Neighbor B is attempting to adversely possess the property, including a copy of the tax return filed by Neighbor B. In many cases, upon receiving such notice, Neighbor A will be in a position to put an end to Neighbor B’s attempt to adversely possess his or her property.
Thus, Adverse Possession Without Color of Title will not apply in the situation discussed above, where two neighbors discover, years after a fence has been installed, that the fence line may not coincide with the boundary line. This is because many of the above-described requirements cannot be met unless they are met shortly after the fence is installed. And, when they are met, Neighbor A will receive notice and will be able to address the situation before the seven-year adverse possession period has run, assuming that Neighbor A takes timely legal action.
As discussed above, adverse possession is a powerful legal doctrine that can allow one person to take possession of the property of another, and eventually acquire ownership of that property. However, the requirements for establishing adverse possession are quite demanding and are therefore rarely met. Please note that there are other legal arguments that can be raised by neighbors who are involved in a boundary line dispute, which are beyond the scope of this article. If you find yourself in a boundary line dispute with a neighbor, the best way to protect your rights is to take legal action sooner rather than later by contacting a knowledgeable Florida real estate attorney in order to ensure that your interests are protected.
Please note that this article is intended for informational purposes only, and that nothing contained in this article may be relied upon as legal advice. Every situation is unique and requires unique attention and legal advice.
If you have any questions or concerns about the location of the boundary lines to your property, please contact our office to schedule an appointment to discuss your unique situation.