More Pesky Questions about Adverse Possession

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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Author: bobhurt

See http://bobhurt.com

3 thoughts on “More Pesky Questions about Adverse Possession”

  1. I am certain that I am not the only one that was under the misguided impression that, since the bank loaned you the money to purchase your home, that in the case of default, the property would then belong to the bank, so that was my first lesson. But to see that the online foreclosure auctions allow them to place a high bid, (more than most people could be expected to bring in cash for example) and that a lesser bid would not be accepted,thus allowing the banks to purchase the property for such a low amount was truly eye opening!
    It feels alot like a rigged game, any thoughts?

    1. The more we peek into government processes, the more we understand the common sense behind them. But sometimes, vested interests such as the lending industry will pervert them. Example: allowing a bank or its agents to buy a house at poorly advertised foreclosure auction for $100, and yet failing to require property appraisers to include that price in the average real estate valuation.

      We should remember that the widespread collapse of realty values would not have happened had that real estate industry demanded honest appraisals to begin with. Modern single family residence appraisals never include the income capitalization approach, but include only the market value approach to determine the worth of realty. This resembles establishing the fair market value of water on the price of bottled water during the Rodney King riots in Los Angeles a few years ago. L.A. prosecuted the opportunists for price gouging in an emergency, so the skyrocketed prices certainly did not represent a fair price. SImilarly, when interest rates fall and people rush to refinance and buy more house for the money, the resulting price increase throughout the land represents not an increase in house value but an opportunistic price gouging promoted by realtors, lenders, and related agents. I consider associated appraised value hikes as encouragement for price gouging in the realty industry.

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