10 November 2011 By Bob Hurt
Roxann from Broward County Florida called and informed me of Fitzroy Ellis sentencing related to Adverse Possession, and to ask about AP of a house of a deceased, intestate, heirless owner. Lola from Duval County Florida called and informed me of Statewide Prosecutor Nick Cox persecution of Demetrius Lewis and Chris McDonald for AP-related crimes, and to ask about AP of an abandoned, moldy, overgrown place bought by the lender for $100 at auction.
I estimate that only a high appeals court like the state Supreme Court can adequately and with reasonable finality answer the questions. They involve an understanding of the English Law of Florida with roots 600 years deep. And neither the courts nor the Florida Legislature have ever published that law fully for the people to know and use.
I pointed the callers to Florida Statutes Chapter 86 and my article on AP strategy. Questions arose that might provide topics for declaratory judgment naming Sheriff, State Attorney, Statewide Prosecutor, Attorney General, Police Chief.
- Why does lender get property for only $100 at auction (auction sham works like a scam)?
- Why does clerk turn down opposing bids?
- How does court determine fair market value of foreclosure auction property?
- If APer makes repairs and improvements can APer put lien on property for costs?
- Can APer prevail in a law suit against owner for payment of such lien?
- Can owner prevail in a lawsuit against the APer for rent or unauthorized changes like adding on a room, re-landscaping the property, planting a garden where grass existed, uprooting a tree, etc.?
- Does chapter 82/83 apply – must owner sue for ejectment/writ of possession to eject adverse possessor who possessed realty more than 30 days, or may owner remove APer with mere trespass warning filed with sheriff?
- How much time does APer have to vacate property on receipt of writ or possession or trespass warning?
- Does time of filing Notice of AP affect the above, given that law requires AP Notice only within the first year of AP?
- For abandoned realty with house open to the air, should County health dept check air quality and other inhabitability issues like mold/rats/pigeons/insects/vermin in A/C ducts, attic, main house?
- Can APer hold owner liable for health problems resulting from mold/rats/pigeons/insects/vermin?
- Does the English Law of Florida provide that AP statutes/common law constitute only a remedy for adverse possession or also a right adversely to possess untended realty?
- Does Florida statute violate the English Law of Florida, by removing a common law right without providing a suitable statutory substitute, such as by requiring notice to the property appraiser and owner and Sheriff/police, such that police harass the APer without complaint by owner?
- Does sheriff/police violate APer rights by harassing, and warning APer of arrest for entry on AP property?
- Must notice to owner of record include notice to both equitable owner (mortgagor) and legal owner (mortgagee/lender/assignee)?
- Does such notice require uniting or mortgage and note under one common beneficiary?
- Does such notice become unduly burdensome when beneficiary has assigned note in blank?
- Does APer have right to rent the AP realty to someone else?
- What law or principle of law prohibits an APer from taking AP of numerous realties, fixing them up, and renting them out, so long as APer does not misrepresent the APer’s status as an APer, or the fact that the owner of record might act to repossess the realty within the statutory period?
- Does the APer have the right to demolish a structure unfit for its intended use (such as human habitation) on the AP realty and replace it with a new one or not replace it at all?
- Approximately how much would it cost to prosecute a declaratory judgment lawsuit on these and related questions, seeking injunctions against law enforcers and prosecutors from harassing APers or acting against APers criminally, and forcing harassers to compensate victims of such harassment?
- If an APer takes AP of a house that belonged to a free-and-clear owner who died without will or heirs, what right does the APer have to defend possession against the State of Florida and any probate court?
- What if the owner did have heirs but no will? Does APer have any priority of right over the heirs, and if so, what?
- What if the owner had a will that ignored the house, and no heirs?
- At a foreclosure auction where lender takes realty for the “value” at a cost of $100, why does the auction detail not list the purported value instead of $100 as the purchase price?
Why do courts not (in equity) force lenders to cram down loan balances to present actual value minus paid in equity – why does lender as sophisticated investor who caused the collapse of values not have to shoulder the brunt of equity loss?
A white paper answering the above questions could become a good promotional item for a title attorney.
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