Use of Adverse Possession "Defense" By Vacant Home Hijackers Now Drawing Attention From Florida Lawmaker

In Tallahassee, Florida, The Tampa Tribune reports:

• State lawmakers may beef up protections of property owners' rights by rewriting a law this spring that is at the center of a case of alleged fraud in Pasco County. Florida, like most states, has a statute enabling people to stake a legal claim to property that already belongs to someone else. The intent behind the so-called adverse possession statute is to encourage the best use of land that may otherwise go neglected and to maximize the taxes collected on it.

• To initiate an adverse possession, a person must file notice with the county property appraiser of his intention within a year of occupying it. The prospective owner must then occupy, improve and pay taxes on the property for seven years before gaining title.

• That's what Stephen Bybel said last month that he was in the process of doing when he took over 72 vacant properties, mostly in central Pasco County, cleaned them up and then rented out 31 of them. Bybel claimed he was following the adverse possession statute to make money and clean up the community at the same time.

• Local law enforcement took a different view, saying that he broke into properties that didn't belong to him and changed the locks before renting the properties to unsuspecting tenants. Pasco County Sheriff's detectives arrested him in February on a charge of scheming to defraud; Bybel has pleaded not guilty, and the case is still pending.

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• Among other things, [Florida state Senator Paula] Dockery is proposing to require anyone filing an adverse possession claim to send notice to the owner of record. A county receiving a tax payment from someone seeking to take over a property would have to hold onto it until after the tax due date, and then return the payment to the adverse possessor if the owner of record pays the tax bill on time.(1)

For more, see Ownership rights to get another look.

(1) Before lawmakers in any state begin thinking about passing laws addressing these bogus adverse possession claims, they may simply want to take a look at their existing laws (including their state's case law) to conclude that the hijacking of possession of these homes is actionable as a trespass.

For example, a New York trial judge recently reviewed the case law of New York addressing trespass in the context of a mortgage lender taking wrongful possession of real estate in a home foreclosure action (Wells Fargo v. Tyson, 2010 NY Slip Op 20079 (Sup. Ct., Suffolk County, March 5, 2010)) (my emphasis added, not in the original text of the case):

• Distilled to its very essence, trespass is characterized by one's intentional entry, with neither permission nor legal justification, upon the real property of another, Woodhull v. Town of Riverhead 46 AD3d 802, 849 NYS2d 79 (2nd Dept. 2007).

• The injury arising therefrom afflicts the owner's right of exclusive possession of the property, Steinfeld v. Morris 258 AD 228, 16 NYS2d 155 (1st Dept. 1939), Kaplan v. Incorporated Village of Lynbrook 12 AD3d 410, 784 NYS2d 586 (2nd Dept. 2004).

• The elements of a claim for trespass are intent coupled with the entry upon the land that is in possession of another. In order for trespass to lie, general intent is legally insufficient. Instead, there must be a specific intent, either to enter the land or to engage in some act whereby it is substantially certain that such entry onto the land will result therefrom, Phillips v. Sun Oil Co. 307 NY 328, 121 NE2d 249 (1954).

• The intent need not be illegal or unlawful, MacDonald v. Parama Inc. 15 AD2d 797, 224 NYS2d 854 (2nd Dept. 1962) but even one who enters the land upon the erroneous belief that he has the right to enter thereon will be held liable in trespass, Burger v. Singh, 28 AD3d 695, 816 NYS2d 478 (2nd Dept. 2006).

• Trespass will lie against a party if entry upon the land was perpetrated by a third party, such as an independent contractor or other party, at the direction of the party to be charged, Gracey v. Van Kamp 299 AD2d 837, 750 NYS2d 400 (4th Dept. 2002).

• It follows then, both logically and legally, that the injured party must have been in possession, whether actual or constructive, at the time that the alleged wrongful entry occurred, Cirillo v. Wyker 51 AD2d 758, 379 NYS2d 505 (2nd Dept. 1976).