Adverse Possession and Deraignment

Adverse Possession and Deraignment

By Jessica A. Cappock April 21, 2022 Posted in Real Estate Litigation

Conveying is a precise process that must be handled with delicacy to avoid any hiccups along the way. Florida Courts have a long-standing history of protecting possessory rights. A possessor may be able to claim ownership of real property without deraigning title via adverse possession.

Section 65.061(3), Florida Statutes, governing quieting title, requires that

[t]he plaintiff shall deraign his or her title from the original source or for a period of at least 7 years before filing the complaint unless the court otherwise directs, setting forth the book and page of the records where any instrument affecting the title is recorded, if it is recorded, unless plaintiff claims from a common source with defendant.

Deraigning title includes both the duty of a party to prove that they are the grantee in the chain of title to the real property and also to show the parties and/or chain of title from which they claim. Helman v. Udren Law Offices, P.C., 85 F. Supp. 3d 1319 (S.D. Fla. 2014) citing McDaniel v. McElvy, 91 Fla. 770 (Fla. 1926). Where the plaintiff’s allegations, when taken as true, establish a chain of title 7 years or more, the deraigning requirement of Section 65.061(3) was met. Kraft v. Reith, No. 718-CA-003929, 2019 Fla. Cir. LEXIS 563 (Fla. 20th Cir. Ct. Feb. 6, 2019).

  1. The Importance of Possession

We are all familiar with the old adage that “possession is 9/10 of the law.” In Florida, a Seller may not grant real property to another if the Seller is not in possession of that property. If at the time a deed is executed, the land is in the actual adverse possession of another, the Buyer will take his title to the real property, subject to the adverse possessor, regardless of the Buyer’s knowledge of the possession. Farrington v. Greer, 94 Fla. 457 (Fla. 1927). In fact, the court will likely find a deed executed at the time of adverse possession of another, void pursuant to the Seller’s lack of possession at the time of conveyance. Florida Power Corp. v. McNeely, 125 So. 3d 311 (Fla. 2d DCA 1960). In Johnson v. Green, the Florida Supreme Court found that a building constructed prior to the sale of the property sitting and encroaching upon the border of the property, hindered the delivery of possession of that portion of the land and therefore title was void as to the adverse possessor of that portion of the land. Johnson v. Green, 54 So. 2d 44 (Fla. 1951).

In light of the foregoing case law, it is important to inspect the property for possessors other than the Seller, and confirm that the Seller possesses the entirety of the property prior to purchase. Often times, close inspection for third-party possessors, particularly in the purchase of large parcels, commercial property, or property with what appears to be natural boundaries, goes overlooked. Buyers and Sellers alike, tend to rely upon the four corners of the property description as expressed in the deed, assuming the entirety of the parcel is free from outside possessors. A more thorough inspection is needed to avoid the risk of a claim from an adverse possessor. With that being said, in the instance that you are a third-party possessor, you may want to take advantage of Florida courts’ long-standing history in protecting possessory rights, and move to claim ownership, should you meet the requirements as laid out above.

 2. Possessor is Superior to the Intruder

While a claim for adverse possession without deraigning title requires possession for a minimum of seven (7) years, Florida law protects the possessor from intruders prior to the seven (7) year mark. Florida doctrine allows a “party who is in peaceable, bona fide and actual possession of the land with a present right of continued possession, [that is] ousted by a bare trespasser or intruder who enters without any right or claim of title, [to] recover upon proof of his prior possession only, and it is not essential to such recovery that such possession should have been held for the time required by the statute to acquire a prescriptive title by adverse possession.” Farrington, 94 Fla. at 461.

 With the court’s focus set squarely on possession, it is a potential avenue for gaining superior title to real property. Particularly in Farrington the court wrote that,

if the grantee…enters under such deed and obtains possession of the land, even though it be against the wishes of the [possessor], such grantee may avail himself of the title of his grantor…by uniting [the] title with his own possession…and may thereby complete in himself a title as good as against the former [possessor] who is without title and who is then out of possession…. (emphasis added).

Therefore, so long as the possessor has possession of the subject property, he may dispute true title. Id. at 466.

Whether buying, selling, or exploring options to quiet title in property, possession is key, particularly to claim ownership without deraigning title under the newest version of Section 65.061(3), Florida Statutes. It is best practices to thoroughly inspect for third-party possessors prior to purchasing any parcel. Multiple visits may be necessary for areas of property not used on a daily basis, such as boat docks, or wooded areas of the property. In the instance that you find yourself in possession of property, whether under a mistaken belief that possession was proper or not, keep in mind your possession is likely superior to any outside intruder, and you may be able to legally claim possession, without deraignment, so long as you have been in possession for at least seven (7) years.

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