Know your rights – Adverse Possession 

If I move into an empty home in foreclosure can I be arrested for trespass?

By Barry Krischer

“You can’t get something for nothing,” and “There ain’t no such thing as a free lunch,” should come to mind when asking this question. There is, in fact, a Florida law that allows for “adverse possession,” however, it will not allow people take another person’s house for free.

“Every American jurisdiction has one or more statutes of limitation fixing the period of time beyond which the erstwhile owner of land is not privileged to bring an action, or to undertake self-help, for the recovery of his land from a person in possession thereof.” In Florida that is 7 years. Section 95.18, Florida statutes provides in part, “When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right. The property actually possessed is held adversely if the person claiming adverse possession: …” meets a list of pre-conditions that the possessor must perform to move his claim forward. Ensuring the possessor has done what is required is the responsibility of the Property Appraiser. 

“We always attempt to contact the owner of record, by telephone when possible,” one Property Appraiser was quoted say saying. “If we cannot reach by telephone, then we send a certified letter to the current mailing address and owner of record.” Additionally, to eliminate an uncounseled claim of right the statute requires anyone who files for adverse possession to sign an “adverse possession claimant acknowledgement” that includes fair warning.

“UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.”

The possessor’s actions must be “open and notorious” thereby placing the true owner on notice that a third party is using his property. Further, paying the property taxes on the property for seven consecutive years is one of the requirements in a legitimate adverse possession case. Thus, despite the fact that the possessor filed, “a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality,” (see F.S. 95.18), the possessor has not perfected his possession unless he has been present on the property without challenge by the true owner for 7 years. 

Lack of continuity can be caused by an “interrupting act” of the rightful owner, such as, calling police or sheriff to arrest the possessor for trespass and/or burglary. Most possessors don’t make it past 90 days let alone 7 years. Additionally, a court ordering the possessor out of the premises terminates his claim of right to the property. 

F.S. 95.18 concludes with the following provisions: “(9) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section prior to making a return as required under subsection (3), commits trespass under s. 810.08.” And, “(10) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section and offers the property for lease to another commits theft under s. 812.014.”

Sheriff Grady Judd, Polk County, was quoted providing advice for anyone seeking housing using this improper route: “If you need a place to live, don’t worry about it because when you move into one of these houses illegally, I’m going to give you a place to live at the county jail.” 

So, the answer to the opening question is Yes.

Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

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