Florida Property Encroachment/Possession
A house was built in 1986, and soon thereafter an inground pool was constructed. Part of the land the pool is on (as well as the cage surrounding the pool and the mandated space around the cage is on county property...I think about 5' of the entire width of the property.
In my research, it appears that ownership can be established after 7 years of land improvement, which I believe the fence construction demonstrates.
Several questions:
Is it 7 years of continued use by one owner or 7 years of continued use by a multiple of owners?
I'm not sure what kind of encroachment this is legally. It sounds as if its Adverse Possession...but then the possession must be "actual, visible, open, notorious, hostile, definite and exclusive"....but if the county never sees this (because its at the back of the property), does this still hold true for this case?
Can Property Possession rights be valid against counties, or just individuals?
Should I try to file a Boundary by Agreement with the county, which may just open up a can of worms, as they may not be aware of it...although they must have signed off on the pool construction, right?
Another requirement for adverse possession is that the owner must have paid property taxes on the land claimed to be adversely possessed. If the house is reassessed for taxes by the sale, isnt this in effect paying taxes on that portion of the land that is assumed? One can hardly be taxed on a portion of a pool, can they? Or is there sometimes a disclaimer in the assessment eluding to non-payment of a land portion?
Apparently, to claim Adverse Possession, I also "need to have some sort of title on which to base claim of title"...this line came from U of F's law summaries....not sure I understand specifically what this is referencing.
Any guidance would be appreciated. Thanks
Source: Edited...apparently I cant post the source, but its from the University of Florida's Institute of Food and Agricultural Sciences website, under an article called "Florida Fence and Property Law: Boundaries and Possession"
[ Edited by nan on Date 09/10/2003 ] [ Edited by nan on Date 09/10/2003 ]
Very interesting issue. Please note that I am not attempting to render any legal advice her, I just want to point you in the right direction. Any questions you may have beyond what I provide you, I ask that you refer to an attorney in your area.
With that quick caveat (that we attorneys provide to nonclients when they ask these kinds of questions), I will provide you some quick background (for your edification) and then discuss you particular issue:
First, it sounds like you are attempting to obtain TITLE to the enclosed portion by adverse possession. In Florida you have 2 types of adverse possession (by color of title and without color of title), with both the statutory period is 7 years. Adverse possession by color of title is set forth in section 95.16, Florida Statutes without color of title appears in section 95.18, Florida Statutes. If the deed did not include the area of land that you presently claim a right in, then it would not be by color of title.
Distinguish TITLE, which is what you mention you are trying to gain, from USE of the property. USE of property not owned by you may, as a general matter, be gained (assuming the other elements are met) through an easement by prescription. The period for continuous use is 20 years.
One of the questions you ask is whether you needed to have been the owner of the property for the full 7 years. In legal parlance this is called "tacking". That is, you are tacking your period of ownership to the time that prior owners may have owned the property.
Now to address your situation. The BIGGEST problem that you have is that you are attempting to claim use or title to a piece of property owned by the government (the county in this case). The general rule is that you cannot acquire title by adverse possession OR an easement by prescription against the state or its municipalities. Although the government can acquire title from an individual by adverse possession and an individual can acquire property from another individual by adverse possession, it doesn't work the other way around.
If you have any other questions I direct you to the law books or to speak to a RE attorney in your area.
I hope this at least points you in the right direction.
J