Who Can Claim Title to Property Using Florida’s Adverse Possession Law?

Florida’s adverse possession law is a unique law that allows a trespasser to gain possession of the private property they have trespassed upon. Court cases have established several conditions the trespasser must meet in order to take legal ownership of the property.

As a property owner, real estate agent, or title insurer, it’s wise to understand these conditions so that you can protect your property or help clients protect their properties and lower your liability.

Who Can Claim Title to Property Under Florida’s Adverse Possession Law?

There are five conditions a trespasser must meet in order to claim title under the Florida adverse possession law:

• Hostile: The trespasser must be acting without permission. For example, if you give a landscape maintenance company permission to mow your lawn, they are not acting with hostility when they do so. Therefore, they do not meet this condition for adverse possession. The same condition prevents your tenants from making a title claim, so long as you have an agreement with them.

• Actual: The trespasser must have some control over the property. One of the clearest examples of actual possession is adding a new building to the land, such as a shed or a gazebo.

• Open and notorious: The trespasser cannot hide their use of the property in the hopes of going unnoticed. If you don’t notice a trespasser, they may still meet this requirement unless they took some action to hide their use of the property.

• Continuous: Florida law requires the trespasser to meet the other four conditions, without a break, for seven years. That doesn’t mean your neighbor has to stay on the property for seven years; it means they have to exercise control over the property for seven years. For example, if they remove their shed before the seven-year mark, then they may void their claim.

• Exclusive: Only one person can make a claim under adverse possession. So, two people cannot combine their time spent on the property in order to meet the time condition.  

None of these limits are written into law. Instead, they were all created through case law, or judges making decisions about specific cases. A judge may add further conditions to the possession law at any time. Even if your trespasser meets the conditions, you may still try the case in court, depending on the advice of your lawyer.

How to Protect Your Property from Adverse Possession

Most cases of adverse possession can be prevented by politely asking the trespasser to withdraw from the property. Your neighbor may simply not understand where their property line exists. If asking the trespasser does not resolve the situation, it is critical that you retain the services of a real estate lawyer to take your next steps.

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