You will find Florida’s new adverse possession law from Senate Bill 1142 below, signed into law by Governor Scot on 2 June 2011, at http://laws.flrules.org/. I have attached the pdf file, renamed for clarity, from this entry:
I have appended below the text from the enrolled bill, which I found at this web site:
At this Department of Revenue site http://dor.myflorida.com/dor/property/forms/ you will find the new form DR-452 which County Property Appraisers must distribute for adverse possessors to register the adverse possession:
|DR-452||fillable pdf||R. 01/10||Return of Real Property in Attempt to Establish Adverse Possession without Color of Title
View bulletin PTO 10-01: Return of Real Property in Attempt to Establish Adverse Possession without Color of Title, Form DR-452
Bob Hurt Rebuked the House and Senate for BAD LAW.
I wrote a strident rebuke of the Senate Bill when I discovered it late in March, 2011.
I appended below the text of that rebuke, following the text of the SB 1142.
Bob Hurt’s New Rebuke of the Adverse Possession Law
Because of that rebuke and the fact that Governor Scott signed the SB 1142 into law, I also hereby rebuke the Governor and the new law.
Our AP (Adverse Possession) problem in Florida boils down to two simple realities:
- Civil, not Criminal. We inherited AP as a civil right, not merely a remedy, from English common law and statutory law (see Florida Statute 2.01).
- AP Benefits All. APers (Adverse Possessors) of realty abandoned in foreclosure do the owner, lender, community, government, and realty a huge favor, asking nothing in return but to enjoy the exercise of Florida Constitution’s Article I Section 23 right to privacy, to be let alone free of government intrusion into their lives. The law should acknowledge this and require a notice about the benefits to the owner(s) of record.
- 30 Days to File. The law should give the APer no more than 30 days to file a notice of adverse possession with the Property Appraiser.
- Notice to Owner, HOA, Sheriff, Mortgagee. The law should require the APer to provide notice to the owner, including any mortgagee or lienholder of record, the Home Owner’s Association, and the Sheriff, all of whom may ultimately a claim that can ultimately affect possessory rights. If the APer cannot find the owners for the purpose of serving notice of AP, the APer ought to publish notice for two weeks in a newspaper that publishes legal notices.
- Photo Initial Condition. The law should require the APer to provide photographic evidence on CD/DVD attached to the Notice of Adverse Possession. The evidence should include digital high resolution photographs or video recording of the realty and buildings on it, roofs, inside and out, every room, all trees, bushes, flowerbeds, fences, paths, paved driveways and walkways.
- Trespass Warning. The law should require the owner desiring to evict the APer to present the APer with a trespass warning that allows a minimum of 15 days and no more than 30 days for the APer to leave the AP realty in broom-clean condition. This right to present the trespass warning should have effect only for 30 days after the APer filed notice of AP with the County Property Appraiser and owners of record.
- APer Keep Journal. The law should require the APer to keep a journal of maintenance and improvement of the realty for the statutory limitation period. It should contain narrative descriptions of work scheduled and completed, and all fees and taxes and other expenditures paid. It should contain complete verified, receipted records of expenses of materials, time, labor (including that of the APer at average rates), taxes, government fees, inspections, and related expenditures.
- Taxes, Home Owner Association (HOA) Dues, Assessments. The APer should pay taxes, HOA dues, and government assessments related to the Realty. If the rightful owner or any other party pays these while the APer possesses the realty, the recipient must return the payment with a notice that the APer has already paid them.
- Writ of Possession. An owner may use the court order and a writ of possession to get the sheriff’s assistance in removing the APer.
- APer Pay Eviction Cost. The APer should pay for the cost of evicting the APer who does not willingly leave the realty after receiving a trespass warning, but not for any costs related to issuing trespass warning.
- Photo Exit Condition. The law should require the APer to provide photographic evidence of the condition of the realty immediately prior to final exit from it.
- Owner Photo Entry Condition. The law should require the owner to make photographic evidence of the condition of the realty upon regaining possession from the APer. In the absence of such evidence, the APer’s exit photos shall be deemed factual.
- Owner Pays APer’s Costs after Eviction. The owner should pay for all of the APer’s verified expenditures, including hourly rate for labor, for improvements to the property, and for taxes and other liens and assessments paid, and the APer should have the right to file a lien against the property for those amounts, subject to the owner’s court challenge for padding the bill, prevailing party having entitlement to attorney fees and costs.
- No More Bogus Arrests of APers. Florida Sheriffs arrest APers under the pretense of arresting them for grand theft, burglary, breaking and entering, criminal mischief, and fraud. The law should punish sheriffs for such harassment.
- Aggressive Government Protection of APer’s Rights. Government has the obligation to protect adverse possessors against all aggressors who would interfere with their possessory dominion of the AP realty (including the Sheriff) with one exception only – the owner of record.
- Supreme Action. The Florida Supreme Court should strike down the Sheriff’s and Legislature’s every effort to limit or criminalize AP under the guise of protecting realty owners’ rights. Adverse Possessors have become the state’s new “niggers.” They deserve every bit as much protection of their civil rights as did America’s former slaves and descendants of slaves and former slaves. However, no NAACP or SPLC exists to defend their rights or push for legislation to protect them. So, the Florida Supremes ought to protect them, particularly from spurious arrest by sheriffs who accuse them of grand theft, the realty equivalent of “driving while black.”
Text of Florida Senate Bill 1142 as enrolled:
2 An act relating to adverse possession; amending s.
3 95.18, F.S.; specifying that occupation and
4 maintenance of property satisfies the requirements for
5 possession for purposes of gaining title to property
6 via adverse possession without color of title;
7 requiring a person seeking property by adverse
8 possession to use a uniform adverse possession return
9 provided by the Department of Revenue; requiring the
10 property appraiser to notify the owner of record of an
11 adverse possession claim; requiring that a person
12 claiming adverse possession attest to the truthfulness
13 of the information provided in the return under
14 penalty of perjury; authorizing the Department of
15 Revenue to adopt emergency rules; requiring that the
16 property appraiser add certain information related to
17 the adverse possession claim to the parcel information
18 on the tax roll and prescribing conditions for removal
19 of that information; prescribing procedures and
20 requirements for adverse possession claims against a
21 portion of an identified parcel or against property to
22 which the property appraiser has not assigned a parcel
23 number; requiring the property appraiser to include a
24 notation of an adverse possession filing in any
25 searchable property database maintained by the
26 property appraiser; amending s. 197.212, F.S.;
27 excluding property subject to adverse possession
28 claims without color of title from provisions
29 authorizing the tax collector not to send a tax notice
30 for minimum tax bills; creating s. 197.3335, F.S.;
31 requiring the tax collector to determine whether a
32 duplicate tax payment is made by an adverse possessor;
33 providing for priority of tax payments made by an
34 owner of record who is subject to an adverse
35 possession claim; providing for a refund of tax
36 payments under certain conditions; providing for
37 retroactive application of certain provisions
38 governing procedures for administering a claim of
39 adverse possession and establishing tax priority for
40 owners of record; providing an effective date.
42 Be It Enacted by the Legislature of the State of Florida:
44 Section 1.Section 95.18, Florida Statutes, is amended to
46 95.18Real property actions; adverse possession without
47 color of title.—
48 (1)When the occupant has, or those under whom the occupant
49 claims have, been in actual continued occupation of real
50 property for 7 years under a claim of title exclusive of any
51 other right, but not founded on a written instrument, judgment,
52 or decree, the property actually occupied is
shall be held
53 adversely if the person claiming adverse possession made a
54 return, as required under subsection (3), of the property by
55 proper legal description to the property appraiser of the county
56 where it is located within 1 year after entering into possession
57 and has subsequently paid, subject to s. 197.3335, all taxes and
58 matured installments of special improvement liens levied against
59 the property by the state, county, and municipality.
60 (2)For the purpose of this section, property is
61 deemed to be possessed if the property has been
in the following
62 cases only:
63 (a)When it has been Protected by substantial enclosure;.
64 (b)When it has been usually Cultivated or improved in a
65 usual manner; or.
66 (c)Occupied and maintained.
67 (3)A person claiming adverse possession under this section
68 must make a return of the property by providing to the property
69 appraiser a uniform return on a form provided by the Department
70 of Revenue. The return must include all of the following:
71 (a)The name and address of the person claiming adverse
73 (b)The date that the person claiming adverse possession
74 entered into possession of the property.
75 (c)A full and complete legal description of the property
76 that is subject to the adverse possession claim.
77 (d)A notarized attestation clause that states:
78 UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ
79 THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT
80 ARE TRUE AND CORRECT.
81 (e)A description of the use of the property by the person
82 claiming adverse possession.
83 (f)A receipt to be completed by the property appraiser.
85 The property appraiser shall refuse to accept a return if it
86 does not comply with this subsection. The executive director of
87 the Department of Revenue is authorized, and all conditions are
88 deemed met, to adopt emergency rules under ss. 120.536(1) and
89 120.54(4) for the purpose of implementing this subsection. The
90 emergency rules shall remain in effect for 6 months after
91 adoption and may be renewed during the pendency of procedures to
92 adopt rules addressing the subject of the emergency rules.
93 (4)Upon the submission of a return, the property appraiser
95 (a)Send, via regular mail, a copy of the return to the
96 owner of record of the property that is subject to the adverse
97 possession claim, as identified by the property appraiser’s
99 (b)Inform the owner of record that, under s. 197.3335, any
100 tax payment made by the owner of record before April 1 following
101 the year in which the tax is assessed will have priority over
102 any tax payment made by an adverse possessor.
103 (c)Add a notation at the beginning of the first line of
104 the legal description on the tax roll that an adverse possession
105 claim has been submitted.
106 (d)Maintain the return in the property appraiser’s
108 (5)(a)If a person makes a claim of adverse possession
109 under this section against a portion of a parcel of property
110 identified by a unique parcel identification number in the
111 property appraiser’s records:
112 1.The person claiming adverse possession shall include in
113 the return submitted under subsection (3) a full and complete
114 legal description of the property sufficient to enable the
115 property appraiser to identify the portion of the property
116 subject to the adverse possession claim.
117 2.The property appraiser may refuse to accept the return
118 if the portion of the property subject to the claim cannot be
119 identified by the legal description provided in the return, and
120 the person claiming adverse possession must obtain a survey of
121 the portion of the property subject to the claim in order to
122 submit the return.
123 (b)Upon submission of the return, the property appraiser
124 shall follow the procedures under subsection (4), and may not
125 create a unique parcel identification number for the portion of
126 property subject to the claim.
127 (c)The property appraiser shall assign a fair and just
128 value to the portion of the property, as provided in s. 193.011,
129 and provide this value to the tax collector to facilitate tax
130 payment under s. 197.3335(3).
131 (6)(a)If a person makes a claim of adverse possession
132 under this section against property to which the property
133 appraiser has not assigned a parcel identification number:
134 1.The person claiming adverse possession must include in
135 the return submitted under subsection (3) a full and complete
136 legal description of the property which is sufficient to enable
137 the property appraiser to identify the property subject to the
138 adverse possession claim.
139 2.The property appraiser may refuse to accept a return if
140 the property subject to the claim cannot be identified by the
141 legal description provided in the return, and the person
142 claiming adverse possession must obtain a survey of the property
143 subject to the claim in order to submit the return.
144 (b)Upon submission of the return, the property appraiser
146 1.Assign a parcel identification number to the property
147 and assign a fair and just value to the property as provided in
148 s. 193.011;
149 2.Add a notation at the beginning of the first line of the
150 legal description on the tax roll that an adverse possession
151 claim has been submitted; and
152 3.Maintain the return in the property appraiser’s records.
153 (7)A property appraiser must remove the notation to the
154 legal description on the tax roll that an adverse possession
155 claim has been submitted and shall remove the return from the
156 property appraiser’s records if:
157 (a)The person claiming adverse possession notifies the
158 property appraiser in writing that the adverse possession claim
159 is withdrawn;
160 (b)The owner of record provides a certified copy of a
161 court order, entered after the date the return was submitted to
162 the property appraiser, establishing title in the owner of
164 (c)The property appraiser receives a certified copy of a
165 recorded deed, filed after the date of the submission of the
166 return, from the person claiming adverse possession to the owner
167 of record transferring title of property along with a legal
168 description describing the same property subject to the adverse
169 possession claim; or
170 (d)The owner of record or the tax collector provides to
171 the property appraiser a receipt demonstrating that the owner of
172 record has paid the annual tax assessment for the property
173 subject to the adverse possession claim during the period that
174 the person is claiming adverse possession.
175 (8)The property appraiser shall include a clear and
176 obvious notation in the legal description of the parcel
177 information of any public searchable property database
178 maintained by the property appraiser that an adverse possession
179 return has been submitted to the property appraiser for a
180 particular parcel.
181 Section 2.Section 197.212, Florida Statutes, is amended to
183 197.212Minimum tax bill.—On the recommendation of the
184 county tax collector, the board of county commissioners may
185 adopt a resolution instructing the collector not to mail tax
186 notices to a taxpayer if
when the amount of taxes shown on the
187 tax notice is less than an amount up to $30. The resolution
188 shall also instruct the property appraiser that he or she may
189 shall not make an extension on the tax roll for any parcel for
190 which the tax would amount to less than an amount up to $30. The
191 minimum tax bill so established may not exceed an amount up to
192 $30. This section does not apply to a parcel of property that is
193 subject to an adverse possession claim pursuant to s. 95.18.
194 Section 3.Section 197.3335, Florida Statutes, is created
195 to read:
196 197.3335Tax payments when property is subject to adverse
197 possession; refunds.—
198 (1)Upon the receipt of a subsequent payment for the same
199 annual tax assessment for a particular parcel of property, the
200 tax collector must determine whether an adverse possession
201 return has been submitted on the particular parcel. If an
202 adverse possession return has been submitted, the tax collector
203 must comply with subsection (2).
204 (2)If a person claiming adverse possession under s. 95.18
205 pays an annual tax assessment on a parcel of property before the
206 assessment is paid by the owner of record, and the owner of
207 record subsequently makes a payment of that same annual tax
208 assessment before April 1 following the year in which the tax is
209 assessed, the tax collector shall accept the payment made by the
210 owner of record and refund within 60 days any payment made by
211 the person claiming adverse possession. Such refunds do not
212 require approval from the department.
213 (3)For claims of adverse possession for a portion of a
214 parcel of property as provided in s. 95.18(5), the tax collector
215 may accept a tax payment, based upon the value of the property
216 assigned by the property appraiser under s. 95.18(5)(c), from a
217 person claiming adverse possession for the portion of the
218 property subject to the claim. If the owner of record makes a
219 payment of the annual tax assessment for the whole parcel before
220 April 1 following the year in which the tax is assessed, the tax
221 collector shall refund within 60 days any payment previously
222 made for the portion of the parcel subject to the claim by the
223 person claiming adverse possession.
224 Section 4.This act shall take effect July 1, 2011, and
225 applies to adverse possession claims in which the return was
226 submitted on or after that date, except for the procedural
227 provisions governing the property appraiser’s administration of
228 adverse possession claims included in s. 95.18(4)(c) and (d) and
229 (7), Florida Statutes, and the provisions governing the payment
230 of taxes included in s. 197.3335, Florida Statutes, as created
231 by this act, which apply to adverse possession claims for which
232 the return was submitted before, on, or after that date.
Approved by the Governor June 2, 2011.
Filed in Office Secretary of State June 2, 2011.
Ch. 2011-107 LAWS OF FLORIDA Ch. 2011-107
CODING: Words stricken are deletions; words underlined are additions.
Bob Hurt Comments Regarding the BAD LAW in March 2011
SUNDAY, MARCH 27, 2011
Concerning Adverse Possession Bills:
THIS LINK LISTS ALL THE LEGISLATIVE ACTION ON AP AS OF 27 MARCH 2011
SENATE BILL S1142 HTTP://E-LOBBYIST.COM/GAITS/VIEW/280493
HOUSE BIL H0927 HTTP://E-LOBBYIST.COM/GAITS/FL/H0927
Senate Bill Text http://e-lobbyist.com/gaits/text/182024
Dear Florida Senator Paula Dockery:
I know you have not met me, but I have a lot of friends in your district. Some of them have fallen victim to sheriff deputies persecuting people who do adverse possession. A few years ago I retired from the computer industry. Since then I have devoted myself to study and writing about law. I write about the Adverse Possession changes you and and Rep Roberson sponsored. I want you to change your bill to improve it.
S1142, as written, constitutes a bad law because it wastes resources and fixes no problem. Given the time involved, people who lose realty to Adverse Possession (AP) deserve it for gross dereliction (not putting the land to its highest, best use). Your bill does nothing to improve that hard, cold reality.
The bill appear to me to flail arms at a ship that left port 600 years ago. It has ignored the problems that really need fixing.
For one example, see the latest census report. Florida has 1.6 million vacant residences (18%), largely because owners in foreclosure abandon them and people cannot afford to buy. Meanwhile all families displaced by foreclosure in Florida desperately need a place to live, and AP could solve that, even if everyone knows it as merely a temporary solution.
Unfortunately, irresponsible people (as occupants in AP houses) can quickly ruin a nice house in a decent neighborhood, but most of them haven’t the moxy to take the place by AP. Instead, slick operators sometimes AP homes for a fast buck. If anything, the law should fix that by making them more accountable for damage to the place if they put occupants in it.
I shall make the following comments to everyone I can. The bill is bad for the following reasons. I also provide ways to make it good, and leave issues open for discussion.
I find lots of action in Florida’s legislature regarding adverse possession (AP). Senate Bill, S1142 and House Bill H0927, below, seek to change the rules. I agree with a couple, disagree strenuously with the rest, and have proposals the bills don’t address:
- APer must swear to return under PoP. This makes no sense because Making a false official statement already constitutes a second degree misdemeanor, and the state needs no more serious penalty than that to dissuade falsifying the return. See F.S. 837.06False official statements.—Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
- Standardized Dept of Revenue AP form – ok
- Prop Appraiser informs rightful owner. Unduly burdensome on government (taxpayers). People ought to care for their own property through routine inspection. The statute of limitations runs for seven full years. During this time, any tax payment by the owner restarts the AP clock, so the diligent owner suffers no risk. Furthermore, many owners who otherwise would not care and who abandoned the property anyway, such as because of foreclosure, will simply get jealous and protest for that reason alone, causing unnecessary trouble and expense for the AP and occupant. By this measure the Legislature intentionally stirs up trouble needlessly, TO NOBODY’s BENEFIT and to everybody’s detriment. AP becomes vitally important as a means of housing the millions of homeless in the 1.6 million vacant Florida residences. This notification interferes with that, to no good end. It hurts the community and the state. If the state requires notice to the owner of AP, then it ought to force the owner to remain in the property throughout foreclosure, so the property does not become run down from neglect and become a danger to the community (drug dealer houses) and future occupants (mold and mildew) and reduce community property values.
- Put information of AP on the tax roll – ok
- Authorizing tax collector not to send a notice of minimum tax due on AP without color of title – absolutely not. THe tax collector thereby cheats the APer out of proper notice in the transparent hope that the APer will forget to pay the taxes when due, and thereby drag out the AP process. APers clearly stand subject to property tax. APers have the right to a notice through tax bill just like owners of record do. After all, filing the AP return provides RECORD of adverse interest in the property, and only a court can sort out the various factors and decide the rightful owner. The tax collector has no business interfering in this or stirring up trouble.
- Giving owner priority (over APer) of right to pay tax. Absolutely not. The County offers all kinds of incentives to people for paying property taxes early, and the APer should have that same right to save by early payment. Whoever makes payment first after the first notice of tax due or of opportunity for early payment discount gets credit for making that payment. The law should require that if the APer pays the tax first. After all, this tax thing runs for SEVEN YEARS. The sincere owner can pay the tax first NEXT year.
- The law should stipulate that every time the owner pays tax first, it restarts the statute of limitations clock, but ONLY IF the owner repays tax plus standard interest to the APer for all the years the APer paid first. The law should favor the one who pays taxes when due, or when noticed in case of an early pay discount. Remember why AP happens. The owner has become derelict and has refused to put the land to its highest, best use, the ultimate benefit of land ownership to the society. Remember also that eminent domain proves people don’t really have a solid RIGHT to realty, even after they spend their money on it and keep it in the family for hundreds of years. In keeping with this principle, government has the right to determine the highest best use of realty, and without question, leaving farmland fallow for a decade or a house abandoned for years does NOT benefit the community or put the land to good use. Generally, the APer does what the owner refuses to do, so the government should reward the APer for this by facilitating, not hindering the AP.
- The law should require the tax collector to send tax notices both to the owner of record AND the APer.
- The law should clarify the PURELY CIVIL nature of AP and make the sheriff leave APers and their guests/tenants ALONE, and not falsely accuse them of theft, fraud, b&e, burglary, and other crimes in order to defeat the AP. The law should impose a penalty on any law enforcer who harasses an APer or occupant. In other words, the law should specifically exclude the APer from claim of trespass, B&E, criminal mischief, burglary, and fraud in connection with the AP so long as the APer does not destroy, steal, or dispose of the realty or parts of it. It should declare that disposal of trash, junk and chattel remaining behind in abandoned realty does not constitute a crime. Perhaps the law should require the APer to conduct a thorough and itemized inventory of the remaining chattel and give the owner notice and opportunity to collect or remove it. It should make provision for abandoned realty, how to determine the owner abandoned it. What if the owner left a chair or radio behind, or tools in the shed? What obligation does the APer have to care for and store them? The bill does not deal with any of these crucial questions. I believe it makes sense to address the point by declaring that chattel remaining in an abandoned, untended realty becomes the property of the APer. People should understand the law of AP and the consequences of abandonment.
- In the AP return, require the APer to stipulate the intention to occupy or not occupy the realty. If not occupy, the APer must stipulate the intended use (such as to rent it out to others). The AP non-occupant must specify a domicile in Florida for legal service and a number to contact in the event of an emergency. The law must hold the APer liable for all damage to the property through negligence or intent (other than acts of vandals or other damage beyond the APer’s control). THe law could require the APer to show proof of financial responsibility AND have a bond, like automobile drivers must have. The law might require an APer to pass a certification test on the proper care and maintenance of a residence. The state could concoct an AP license and require it of all professional APers (who rent/sublet the place to others).
As for some real-life issues, see my blog at http://bobhurt.blogspot.com. Note the articles on AP. In particular, look for Joel McNair. I have shown there the full documents proving that Sheriff deputies lied in Probable Cause Affidavits they used to get a phony warrant for his arrest. He had 60 houses in AP at the time and now has upwards of 100. The Deputies of Hillsborough, Manatee, Pasco, and Sarasota have harassed his “members” and told them not to pay him. This means he cannot pay the taxes and other fees and expenses of maintenance. He sends a crew around to mow and maintain the properties for them, so as to make certain that thay son’t trash the place. He has to receive the money in order to afford that service.
Consider these very recent arrests, apparently a declaration of war by Sheriffs against APers:
Sarasota County deputies arrested Joel McNair, twice charging him with grand theft and scheme to defraud, FOR HELPING HOMELESS PEOPLE GET A PLACE TO LIVE.
Polk County Sheriff Grady Judd ordered the warrantless arrest of Derrick Hannah for burglary in Lakeland for AP of the house he lived in for a month, and took him away in the midst of trimming his hedges.
Marion County deputies arrested Pastor and former deputy Roosevelt Mitchell for criminal mischief while he painted his AP house which the owner had abandoned at least 6 months earlier.
Pasco County deputies arrested APer Shalonda Allen of Land O Lakes, accusing her of grand theft.
Hillsborough County deputies arrested APer George Williams of Plant City for fraud.
None of these arrests dealt with the core issue of otherwise homeless people living in decent houses the owners had abandoned.
This law needs to FIX the problems, not by persecuting men like those above and his members, but by persecuting deputies and sheriffs who arrest people like Joel McNair on bogus criminal charges.
PLEASE, Use your influence to Fix this defective bill
PLEASE, Use your influence to Fix this terrible bill
|Bob Hurt bh Blog • Email f
2460 Persian Drive #70 • Clearwater, FL 33763 USA