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Adverse Possession

Adverse Possession

In Florida, boundaries may be established by adverse possession.  “Adverse possession” has been defined as an appropriation of property commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another.  In other words, a possession in opposition to the true title and record owner.

Ultimately, continued adverse possession is a means of acquiring title to lands.  The policy of the law recognizing title acquired by adverse possession is not to punish those who neglect to assert their rights, but to protect those who have continued in possession of lands for the time specified by statute.  However, the acquisition of rights by one in the lands of another based on possession or use is not favored in the law, and such acquisition will normally be restricted through the use of certain statutory factors.

In Florida, there are only two ways to acquire land by adverse possession, either (1) with color of title or (2) without color of title.  Color of title means that the occupant came in possession with apparent title as opposed to actual, real title.

Adverse possession under color of title is a statutory claim.  Under the statute, when the occupant entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, and has been in a continued possession of the property included in the instrument for a certain number of years, the property is held adversely. However, adverse possession will not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located. 

In claiming title to property by asserting adverse possession under color of title, the claimant’s color of title is limited to property shown in the public records.  In contrast, an adverse claimant to real estate without color of title can only avail him or herself to the real estate that was actually occupied and physically possessed during the adverse possession period. 

Regardless of whether there is color of title, the occupant must still also show seven years of open, continuous, actual possession.  The possession must be hostile to all those who would challenge the occupation, and the occupant must pay all taxes that accrue over the seven year period.

If you are a landowner, it is important that you do not “sleep on your rights” and risk losing your property through adverse possession. 

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