It's the Law: Title can be acquired by adverse possession

Q: I am buying a house and had the property surveyed. The survey shows my neighbor planted a hedge three feet onto the property I am buying. I do not want to make a problem for him, but I am worried that he will end up owning the property on his side of the hedge. I have heard about acquiring title by adverse possession. Can the neighbor end up with title to that strip of land by adverse possession?

A: At common law, there was a strong public policy against loss of title through non-use or inattention. There was also recognition that when someone used property for a long period of time, people would rely on that use as establishing ownership where the original owner did nothing to stop the use or formally authorize it as in a lease or use agreement.

A balance of these competing interests allowed title to pass when property was adversely possessed for a long period of time. That is known as adverse possession. Florida has adopted statutes addressing adverse possession and setting requirements to acquire title under that procedure. To acquire title by adverse possession, such possession must be adverse, hostile, open or notorious, exclusive and uninterrupted, for seven years.

There are two types of adverse possession. Adverse possession under color of title means the possessor’s ownership claim is based upon a written document in the county public records. Adverse possession without color of title means there is no recorded document purportedly creating ownership.

To claim adverse possession under color of title, the document purportedly creating title does not have to be valid. However, the possessor must have accepted the instrument in the honest belief that it conveyed ownership. Possession means that the property has actually been used or enclosed. If it is a large amount of property, but only part of it has been cleared or enclosed, the entire property can be considered possessed if the use is customary for the area. The possessor must prove adverse possession under color of title by clear and convincing evidence, not merely by the greater weight of evidence, as is the usual standard in civil lawsuits.

Adverse possession without color of title is not based on a recorded conveyance; accordingly, the statute requires more than mere possession. The possessor must also pay the property taxes and installments of all special improvement liens levied against the property by the state, county and city. The additional requirement of tax payments not only evidences the possessor claims ownership, but places the record owner on notice that property taxes are being paid by someone else. That gives the record owner an opportunity to investigate and take action.

To meet the seven-year requirement for continuous possession, successive possessors can add together periods of adverse possession, as long as they create an uninterrupted string. The more difficult hurdle is proving that possession was open, notorious and hostile. Permissive use, as when you allow your neighbor to maintain a hedge on your property, means the possession is not adverse. Judges do not like to forfeit property or property rights, so adverse possession claims are often defeated by the record owner’s claim that possession or use was authorized.

In addition to acquiring title by adverse possession, title to property may be claimed under the concept of boundary by acquiescence. Boundary by acquiescence is established where (1) there is uncertainty or dispute as to location of the true boundary, (2) location of a boundary line is established by adjacent property owners and (3) the property is possessed for seven years. Merely erecting a fence is not sufficient. Agreement by both property owners that the fence establishes boundary of ownership must exist. By analogy, mere planting of a hedge would not establish a boundary line, especially where a platted property line is well known to both parties.

Although it is highly unlikely the hedge-owning neighbor can acquire title to part of a platted lot by planting a hedge and maintaining his expanded possession, if you are inclined to allow the hedge, you should consider a formal agreement with the neighbor confirming the possession is authorized and including a requirement that the hedge be removed upon request. Confirming the use is authorized will preclude adverse possession and requirement that the hedge be removed upon request may be valuable at time you sell the property and your buyer is not so kind.

The facts and circumstances of each case will affect the outcome. When dealing with real property issues, you are well advised to retain an experienced attorney at the earliest opportunity.

William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.