One obscure area of law that most attorneys only encounter while studying in law school, is the real property concept of adverse possession. According to the Cornell Law School Legal Information Institute, adverse possession is defined as “a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain requirements are met, and the adverse possessor is in possession for a sufficient period of time.” While adverse possession is rarely utilized, it can be an effective tool to clear title to land, especially if the title has any discrepancies in ownership. Furthermore, the burden of proof falls on the person attempting to adversely possess real property, so keep that in mind before attempting an adverse possession claim.
In the Florida Statutes, there are two different methods of attempt to adversely possess real property: Adverse Possession with Color of Title and Adverse Possession without Color of Title. The first step in an adverse possession claim in Florida is to determine the basis of the adverse possession claim and whether you are filing with or without color of title. Adverse Possession with Color of Title is found in Florida Statute §95.16 while Adverse Possession without Color of Title is found in Florida Statute §95.18. The varying methods of adversely possessing land will be addressed in separate blogs; this article will just consider the definition and basics of adverse possession.
In Florida, the elements of adverse possession are established through a blend of case law and statutory law and must be met in order to establish claim to the real property:
- The person attempting to adversely possess the real property must openly and notoriously occupy the land, i.e. the person cannot hide the fact the land is inhabited.
- The person attempting to adversely possess the land must do so in a hostile manner that conflicts with the title owner’s possession and without the title owner’s permission.
- The person attempting to adversely possess the real property must exercise actual control over the property and the property must be exclusive to the adverse possessor.
- The adverse possessor must possess the real property for a continuous period of at least seven years.
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