How To Prove A Florida Adverse Possession Defense
In Florida, a defense of Adverse Possession is defined as:
Adverse Possession enables a person in continuous and active possession of a property under the ownership of another party to acquire valid title to land.
It simply means:
A party can acquire property that isn’t legally theirs, without paying, if they have openly occupied for a certain length of time.
There are 5 elements of the defense:
- Element 1. The defendant has actual physical possession of land. The defendant must be physically present on the land, using it as if they own it, showing clear control and occupancy over the property in question.
Facts that might support this element look like:
* The defendant has continuously occupied the land for over 10 years, maintaining a residence on the property.
* The defendant has made significant improvements to the land, including building a fence and landscaping the yard.
* The defendant has paid property taxes on the land for the past five years, demonstrating a claim of ownership.
* The defendant has openly used the land for personal activities, such as gardening and hosting gatherings, without permission from the original owner.
* The defendant has consistently maintained the property, including mowing the lawn and clearing debris, indicating control over the land. - Element 2. The defendant’s possession of the land is open and notorious. The defendant must use the land in a way that is obvious and visible to everyone, showing that they are treating it as their own, so that the true owner and the public can easily notice their presence and claim to the property.
Facts that might support this element look like:
* The defendant has maintained a visible fence around the property for over ten years, clearly marking the boundaries of their possession.
* The defendant has regularly mowed the lawn and landscaped the property, making their use of the land apparent to neighbors and passersby.
* The defendant has hosted community events on the property, inviting local residents and drawing attention to their use of the land.
* The defendant has placed signage on the property indicating their ownership and use, which has been visible to the public for several years.
* The defendant has made significant improvements to the property, such as building a deck and installing a swimming pool, which are easily observable from the street. - Element 3. The possession is adverse (against the landowner’s interest). The possession is considered adverse when the person using the land does so without the owner’s permission, acting as if they own it, which goes against the owner’s rights and interests in that property.
Facts that might support this element look like:
* The possessor has maintained a fence along the property line for over 10 years, clearly marking the boundaries and excluding the landowner’s access.
* The possessor has cultivated crops on the disputed land annually, demonstrating exclusive use and control over the area.
* The landowner has not visited or used the property in question for more than a decade, indicating a lack of interest or control.
* The possessor has made significant improvements to the property, such as building a shed, without any permission from the landowner.
* Neighbors have consistently recognized the possessor as the rightful user of the land, further solidifying the claim of adverse possession. - Element 4. The possession is under claim of right. “The possession is under claim of right” means that the person using the property believes they have a legitimate reason to do so, acting as if they own it, even if they don’t have formal legal title.
Facts that might support this element look like:
* The defendant has maintained a fence along the disputed property line for over ten years, clearly marking their claim to the land.
* The defendant has paid property taxes on the disputed area for the last five years, demonstrating their belief in ownership.
* The defendant has cultivated crops on the land annually, treating it as their own without objection from the original owner.
* The defendant has openly used the property for recreational purposes, such as gardening and hosting gatherings, without any attempts to hide their activities.
* The original owner has not visited or claimed the property in over a decade, indicating a lack of interest in the land. - Element 5. The possession is continuous and exclusive for a set statutory period of at least seven years. To claim ownership of someone else’s land through adverse possession, you must have used and occupied the property continuously and exclusively for at least seven years without permission from the original owner.
Facts that might support this element look like:
* The defendant has maintained a fence along the property line for over seven years, clearly demarcating the boundaries of their possession.
* The defendant has regularly mowed the lawn and maintained the landscaping on the property for the past seven years without interruption.
* The defendant has paid property taxes on the disputed land for the last seven years, demonstrating a claim of ownership.
* The defendant has openly used the property for personal activities, such as gardening and hosting gatherings, for more than seven years.
* The defendant has made significant improvements to the property, including building a shed and installing a patio, over the course of seven years.
(See Downing v. Bird, 100 So. 2d 57 (FL Supreme Court 1958).)
If you’re in court without a lawyer and plan to assert a Defense of Adverse Possession, having a Personal Practice of Law at Courtroom5 is essential. You’ll need to make critical decisions about what to file at each phase of your case and prepare legal documents supported by thorough legal research and a strong analysis of the facts. Equip yourself with the tools and knowledge necessary to effectively navigate your legal journey.
Prove Your FL Adverse Possession Defense
U.S. Civil Cases Only