I don’t know if Guerette is a scammer, but adverse possession has come up repeatedly here in the comments on the mortgage mess, and it looks like he’s not alone:
Save Florida Homes Inc. and its owner, Mark Guerette, have found foreclosed homes for several needy families here in Broward County, and his tenants could not be more pleased. Fabian Ferguson, his wife and two children now live a two-bedroom home they have transformed from damaged and abandoned to full and cozy. There is just one problem: Mr. Guerette is not the owner. Yet. In a sign of the odd ingenuity that has grown from the real estate collapse, he is banking on an 1869 Florida statute that says the bundle of properties he has seized will be his if the owners do not claim them within seven years.
Legal scholars say the concept is old — rooted in Renaissance England, when agricultural land would sometimes go fallow, left untended by long-lost heirs. But it is also common. All 50 states allow for so-called adverse possession, with the time to forge a kind of common-law marriage with property varying from a few years (in most states) to several decades (in New Jersey).
It is not clear how many people are testing the idea, but lawyers say that do-it-yourself possession cases have been popping up all over the country — and, they note, these self-proclaimed owners play an odd role in a real-estate mess that never seems to end.
Sue
Give that man a tax break! And later on, when all hell breaks loose, blame it on the people who ‘bought’ the homes from him.
Napoleon
I think you need 20 years in Ohio. By the way, just living there is not enough. You have to have “exclusive possession and open, notorious, continuous, and adverse use”
matt
Yet with all of that work, if the true owner says get out, the whole thing is over.
kth
It would be easy to put a Gadsden “don’t tread on me” flag on this sort of time-honored insurgent tendency. Supposedly the teabaggers hate the bank bailouts, right? Unfortunately, that’s what the astroturf outfits like FreedomWorks exist for: to ensure that the TEA revolt never trains its sights on business or industry.
Steve
My Property professor was an extremely quirky British fellow named Simpson. He explained adverse possession this way: “Say you invite me over for dinner, and in the middle of the meal you go outside to take out the trash, and when you come back in the house, there’s Simpson in the bath! ‘Adverse possession! Clock is ticking, tick tock!'” Maybe you had to be there.
DJAnyReason
Adverse posession is a necessary corrolary of a statute of limitations on tresspass. If Bob plops down on Jim’s land, and Jim doesn’t do anything, eventually the statute of limitations runs, then Jim legally can’t do anything about it anymore. At that point, its actually better for society if legal title passes to Bob.
burnspbesq
Good luck getting a title insurance company to write a policy during the period of adverse possession. Which means you can’t sell and can’t get a HELOC to pay for repairs. You maynot even be able to get homeowner’s insurance.
And you can be evicted at any time.
So it’s better than living under a freeway, but it’s still awfully precarious.
Ed Marshall
I know squatters who have tried this and something always happens. I think you may as well buy a lotto ticket and hope you hit and just buy another house.
Kay
@Napoleon:
This made me laugh a little, in light of our current melt-down:
Nah. Really?
Now that guy is an expert worth contacting!
Ed Marshall
@DJAnyReason:
Every state is different but it’s rarely that simple.
fleeting expletive
Steve @ 5, was that at UT Austin? I too had a quirky British property professor, but I can’t remember if he was Simpson or not.
Corner Stone
Dealing with real estate in FL? Check!
Dude’s a scammer.
Dennis SGMM
@matt:
Isn’t the fact that some mortgages have been sliced and diced and rolled up into investment instruments owned by multiple entities part of the real estate mess? Maybe the adverse possession folks are counting on that.
Culture of Truth
Seriously? Have we completely run out of sensible ideas?
Napoleon
@DJAnyReason:
And that is the rock upon which anyone claiming adverse possession is going to crash. I have a hard time believing that in the intervening time the bank will not do something to show they own the house.
Which brings me to the biggest reason I think it will not work which is that IMO, without doing the research, a bank’s mortgage (ie, a foreclosure has not been completed) will not be subject to adverse possession since it is not a possessory interest. At worse the person gets adverse possession against the last owner, but so what, it will be subject to the mortgage, just like if they had bought the house from the last owner. Just scanning the article linked to it appears that no one brought up that glaring hole in the theory that adverse possession would work.
Joey Maloney
@DJAnyReason: That doesn’t make sense to me. As long as the person is in “open and continuous” possession, he is continually committing new acts of trespass. The statute of limitations doesn’t run from the first moment he steps onto the property, but rather from the last moment before he steps off.
The Republic of Stupidity
@Kay:
Heh… I had an uncle who lost a bundle on Florida real estate back in the 60’s… kind of a notorious case back in the day… he and his pool of investors bought some land to build houses and a golf course on, and it turned out they had quicksand on most of the acreage…
Beginning of the end for poor old Uncle Bob…
Kinda gives all new meaning to the phrase sand trap though…
Anoniminous
What the squatters on these properties don’t realize is they now owe the King of England due feudal service for the land consisting of:
1. Two knights with horses, mail, swords, and lances
2. Three men-at-arms with leather jerkins, poniards, and longbows
3. Five grooms to care for the horses as well as cook and clean for the previous
These must present themselves to the King’s Host at St. Albans and be sent anywhere within the Duchy, at the King’s pleasure, from Michaelmass to the feast of St. Thomas (Apostle.)
Sinister Eyebrow
Adverse possession is an exceedingly dodgy way to acquire property. If the owner shows up and mows the lawn even once, then the clock starts over.
The legal theory behind it is that property should be in use. If an owner is so neglectful, and so absent that he or she doesn’t even notice that someone has moved in and is making use of a property for 10 or 20 or 30 years, then they are not making use and society is better off with the new resident who is clearly making use of the property. Louisiana law is littered with these cases (30 years to claim title by adverse possession).
kay
@The Republic of Stupidity:
I love the moral tenor of his statement.
People will manipulate a poorly regulated market to their own ends?
Conservative’s jaws are dropping all over the world, as they struggle to grapple with this new and timely information.
R-Jud
@Anoniminous:
They better hope it’s not Edward I. Dude always had his hand out for some war or other.
Culture of Truth
Just because a legal concept is “old” doesn’t make a great idea.
Tonal Crow
@Napoleon:
A good point, but you can also argue that a defaulted mortgage is, constructively, a possessory interest, since it can be converted into possession by foreclosure. And the policy underlying adverse possession — that land should be used, rather than left fallow — would be undermined if adverse possession didn’t affect mortgages.
[This is blogging, not legal advice. Please consult your favorite landshark for legal advice.]
RobNYNY1957
I actually know someone who got his apartment in New York City by adverse possession. It was abandoned, had a tax lien on it, but the tax lien was not foreclosed upon in the 10 years he lived there, so he filed a decaratory action and won, unopposed.
But if there is an owner, it is very simple for the owner to defeat adverse possession by giving the squatter the right to be there, temporarily. That means that the possession is not “adverse” and starts the clock at zero again when the permission is revoked.
Xenos
As a detail, most states require the adverse possessor to pay taxes on the property for the entire period of possession. If a a proper owner gets in and pays just one dollar toward the tax bill, the statute of limitations starts over again…
Then again, if a property goes without taxes paid by the owner of record for 7, 10, 20 or 30 years, and the town can’t be bothered to have a tax auction, you might as well give it to the adverse possessor – it has been abandoned.
I would be very surprised and amused to see even one successful adverse possession claim in my lifetime. It is about as likely as a client coming into my office and asking to leave his property in fee tail to one of his legatees.
ornery curmudgeon
@kay: “People will manipulate a poorly regulated market to their own ends?
Conservative’s jaws are dropping all over the world, as they struggle to grapple with this new and timely information. “
That was good, Kay. Well said lol.
Church Lady
Isn’t what these people are doing also referred to as “squatting”? Seems like the Sheriff could come by any time and put the tenants stuff out on the curb.
Anonymous At Work
It’s 14 years in Arkansas and you have to pay taxes on the property under colour of possession as a result of some ass-hat trying to claim whole subdivisions worth of retirment property bought by Air Force personnel (who were absentees intending to come back and build a retirement house near the AFB).
These type of self-help DIY cases always lead to changes in the law and judges slapping potential adverse possessors around. The more common use in America today is where owners of property become confused about property lines over a long course of time and build fences where they shouldn’t, etc.
Napoleon
@Tonal Crow:
I disagree, it is not constructively a possessory interest. Until the foreclosure is complete the lender has no right to actual possession of the property (it is an entirely separate issue whether they have a right to a receiver, but even then it is the receiver who is then in possession, not the lender).
Do a simple mind exercise. Assume adverse possession is 10 years in your jurisdiction. You get 30-year loan secured by a mortgage. 15 years in you default and when a foreclosure is filed you claim “adverse possession” against the bank. No court is going to find that is valid because the lender never had a right to claim possession until the foreclosure is complete.
Now say, same house, but in the second example you bought the house at the same time your brother did next door, and you immediately swapped possession of your houses with each other and religiously asserted possession from that point forward in a manner to clearly meet the adverse possession law of your jurisdiction. 15 years in both brothers default and raise adverse possession in the foreclosure. Do you really think there is any court anywhere that is going to say that by effectuating the swaps the brothers could assert greater rights then if they stayed put?
By the it is not part of the test for adverse possession that when the person took possession the land lay “fallow”, that is just one policy reason behind it.
Punchy
Just how many lawyers trawl this blog? I can do dirty and imagine perverse possession, I had a friend convicted of Minor In Possession, but I’ve never heard of adverse possession. But apparently everyone else has….
/checks cave door…still stuck
Scott de B.
Is that true? After all the Supreme Court said that if you are discriminated against by getting lower pay than your male peers, the statue of limitations runs from the first paycheck you get, not the last.
Sinister Eyebrow
@Punchy: At last count, 28, including me. But I’m a divorce attorney, so I try not to fill up my limited capacity with all this dirt law. I’m just spouting off on what I remember from property classes in law school.
Napoleon
@Napoleon:
Let me expound on that part, lets say the bank knows the “squatter” in on the property. They have no legal right to remove them. So the bank officer in charge could stand screaming at the property line all day at the squatters but when asked, if he answered truthfully, whether his bank had a right to possession, he would have to say no. The banks right to possession at that point is inchoate and as such they are not in a position to challenge anyone else right to possession, and therefore are incapable of breaking anyone else adverse possession unless they decide to simply assert without legal basis a right to possession.
So how could you possibly establish adverse possession against the bank (or the gas company who has an easement in the front yard or the county who has a ditch easement or . . . ).
Anonymous At Work
Lots of lawyers, this is a common teaching in property law, rarely used in “real” real estate practice and littered with non-lawyers trying to use these laws to their advantage. This is about not letting real property go fallow as well as an attempt to update/adapt the rules for abandoned property to fit land-use.
It’s too easy to prevent this if the owner does anything…but I think left out of hte discussion is that in Florida’s situation, who is the owner? And are they really going to notice from their desk in NYC? (Note the words “open and notorious” does not mean you have to inform them, merely that you can’t hide).
This will end in tears and recriminations but will also add a few years confusion to the current real estate situation.
catclub
@kth:
“Supposedly the teabaggers hate the bank bailouts, right?”
Now we realize that they are being trained to hate the guys (Obama and Geithner, who actually were not the ones) that bailed out the banks, but not the banks and bankers themselves. Neat trick by the bankers.
Lavocat
Throw in lots and lots of guns and I really don’t see this ending well. People will get angry over a lot less than this. Maybe we’ll see the results on America’s Funniest Home Videos! Yay!
Tonal Crow
@Napoleon:
I don’t see it. A mortgagee should not be able indefinitely to toll the statute of limitations on ejectment by neglecting to foreclose.
Your first hypothetical adds the confounding issue of a mortgagor attempting to adversely possess against her own mortgagee. This is probably explicitly prohibited by most mortgages’ terms and/or most related notes’ terms. And even if it isn’t, it’s doesn’t promote the policy underlying adverse possession, *and* it violates the equitable “clean hands” doctrine, since the mortgagor defaulted (an equitable “wrong”), then attempted to profit from that wrong by asserting adverse possession.
Your second hypo adds another confounding issue: since the brothers are cooperating, their possessions are not adverse to each others’ fee interests.
kc
He was collecting rent on properties he didn’t own, so yeah, he’s a fucking scammer.
elmo
@Sinister Eyebrow:
Do former lawyers count? Then it’s 29, including me.
Omnes Omnibus
@elmo: Have I been counted? Litigator, primarily in consumer rights.
Napoleon
@Tonal Crow:
Its very simple, adverse possession works against another who has a right to possession, and a lender simply does not have a right to possession until the foreclosure is complete. A lender is under not any compulsion to sue, and statute of limitations is not implicated, even though it is a similar concept. Unless you have possession or a right to possession it is not possible for someone to establish adverse possession against your rights.
By the way, graduated from law school 86, have been doing real estate since then, it has been over 50% of my practice since around 94 and since around 02 it and finance, almost all of it real estate finance, has been 100% of what I do.
Sinister Eyebrow
@Omnes Omnibus: Well, then I suppose we have to up the made up number that I used by 2. So 30, 30 lawyers.
Glazius
@Napoleon:
If the house was mortgaged for $300k and isn’t even worth $100k now the bank may not be willing to actualize the loss. Assuming it can even prove it owns the place.
I guess the best way to think about adverse possession is that it’s more uncivil than criminal. You don’t have legal standing while the clock’s ticking, and the rightful owner can kick you off the property and demand compensation, or file charges of criminal trespass. But only the owner can do that.
It’d be nice if the article actually mentioned what Florida’s laws are in regard to trespass, as Guerette (but not the other guy they mentioned in the article) took possession of abandoned properties declared “public nuisance” with unresponsive owners. Chapter 810 of the Florida Code indicates in this respect that a dwelling-house, defined as a structure with walls and a roof designed for people to sleep in (or the remains thereof under states of emergency), is as good as a “no trespassing” sign on any property under 5 acres, but I can’t dig up anything on whether something stops being a dwelling-house when it becomes a public nuisance. I imagine this is what would go to court.
… well, if he were up on trespass charges, but they actually seem to be going after him for fraud. I’m not sure what the grounds are there; the article mentions that his contracts note that he isn’t currently the rightful owner of the property, and fraud is a crime of deception first of all.
kay
@Church Lady:
Yeah, right.
Because banks and lenders are so eager to claim responsibility for local rules on maintaining the millions of vacant properties that they own.
The properties are trashed, and they’ve been sitting vacant for years. No way bankers are threatening their fat bonuses by calling the sheriff. There’s liability there.
If they claim ownership, they’d have to pay to keep the grass mowed. That money is tied up in salaries!
trevorb
My dad actually did this once, we had a 5 acre plot in the middle of a 26 acre plot that was owned by the previous owners son. These 26 acres where never used, so my dad just built out his fence further into the 26 acres, waited 7 years and had someone come and redraw the property lines. Now his land is closer to 6.5 acres. Nothing major, but it gave us better access to water.
Carol
Adversepossession.com.
There has to be a less confusing way of doing this.
Jules
I had to neighbors go to war over “adverse possession” of a very small strip of land between them.
It belonged to dude 1, but dude 2 took care of it (cut the grass, put in roses because he thought it was his*) for years and took umbridge when dude #1 decided to dig up the plants, put in a small culvert and build a gravel “road” into his yard for his trailer.
None of the bad feelings would have happened if dude 1 had said something to dude 2 before the culvert supplies appeared one morning.
In the end dude 1 had to pay dude 2 for the small piece of land.
Hurt feelings all around and they still do not talk to each other or wave anymore.
*this was because of a fVcked up survey that the original owner who sold the 2 and 3 acres lots had used.
RobNYNY1957
Some years ago, a guy from Chicago (in Wisconsin, stories like this are always about guys from Chicago) bought the farm next to my brother’s farm. It was at a time when GPS devices were accurate to within about 15 feet. They guy got the latitude and longitude of the property line, sood on the property line, and walked 15 feet into my brother’s property before it rolled over. (He could just have easily walked 15 feet into his own property.) He declared the extra 15 feet to be his, but when he went to the property office to declare it, the clerk told him that the farms had been divded in 1888, so the statute of limitations had run in 1895. That’s how it’s supposed to work.
MCA
I’m with Napolean here. The mortgage interest is simply a lien that runs with the land; it’s not dependent on the fee (unless we’re in a title theory state rather than lien theory state re: mortgages). How is this any different than a simple voluntary conveyance by the current fee owner to another in terms of not wiping out the mortgage?
It also seems to be against public policy to extinguish the interest of the mortgagee. This would be especially true of the mortgagee of a property who is continuing to receive payment. In today’s financial world, where the link between banks holding hundreds of thousands of mortgage interests, it’s not reasonable to expect those mortgagees to actively monitor the actual use of properties in which they have interests. That argument is diminished in the case of a defaulted loan, of course, but again, we’re talking about mortgage holding warehouses.
I think an equitable argument of laches on the part of a defaulted mortgagee not converting into a possessory interest subject to adverse possession as being the only claim the new landowner might have. In reality, that argument would be made in a simple nullification context – the mortgagee has not taken action on its mortgage, ergo its interest should be deemed void as abandoned. The adverse possession discussion would be as to transfer of fee title only.
thirdeblue
That’s the kind of stuff that will get your licensed revoked as a surveyor. Adverse possession is a claim to be decided by the courts. A land surveyor has absolutely 0% legal right to judge adverse possession independently, in Ohio at least.
A lot of surveyors don’t realize that though.
rickstersherpa
From Wikipedia, see below. However, I would advise anyone doing this to pay the property taxes, as the State/County/City can seize the property for unpaid property taxes and sell it off in in auction. In ordinary times I would say “lots of luck,” but this is an unprecdented crisis, and the banks are so screwed up and mismanaged, that there is a significant chance that they could lose “adverse possesson” actions and lose properties through tax delinquencies. However, that means a lot of property with clouded title for years. It is going to be the 19th century again in the court room fighting over homes and land.
rickstersherpa
From Wikipedia, see below. However, I would advise anyone doing this to pay the property taxes, as the State/County/City can seize the property for unpaid property taxes and sell it off in in auction. In ordinary times I would say “lots of luck,” but this is an unprecdented crisis, and the banks are so screwed up and mismanaged, that there is a significant chance that they could lose “adverse possesson” actions and lose properties through tax delinquencies. However, that means a lot of property with clouded title for years. It is going to be the 19th century again in the court room fighting over homes and land.
Adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are:
Actual possession of the property – The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession. Paying property taxes does not establish actual possession, but may be admitted by some courts as evidence of claim of right. For example, if the true owner regularly pays taxes on the land, even while a disseisor has taken actual possession of the land by his regular use and improvement of it, the true owner’s payment of taxes does not affect the disseisor’s actual possession. However, if the disseisor were to pay taxes over the same period that he was using and improving the land, the court might find that his payment of taxes was evidence that he believed he had a “claim of right” to the land. In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements.
Open and notorious use of the property – The disseisor’s use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.
Exclusive use of the property – The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner’s property, and the owner then uses the barn, the disseisor cannot claim exclusive use. (Note: There may be more than one adverse possessor, taking as tenants in common, so long as the other elements are met.)
Hostile or adverse use of the property – The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor’s motivations may be viewed by the court in several ways: Objective view–used without true owner’s permission and inconsistent with true owner’s rights. Bad faith or intentional trespass view–used with the adverse possessor’s subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). Good faith view–a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims.
Continuous use of the property – The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor’s time on the land, not how long true owner has been dispossessed of it. Occasional activity on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor’s return. He cannot count the time between his ejection by the true property owner and the date on which he returned.
[edit] Further requirements for adverse possession
In addition to the above basic components of an adverse possession action, some courts require (by common law or statute), some or all of the following:
Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one’s own constitutes “claim of right”. Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken. A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right.
Good faith (in a minority of states) or bad faith (sometimes called the “Maine Rule” although it is now abolished in Maine)
Improvement, cultivation, or enclosure
Payment of property taxes
Not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.
Phoenician in a time of Romans
He was collecting rent on properties he didn’t own, so yeah, he’s a fucking scammer.
An interesting point here is what happens if the renter says “I ain’t gonna pay no rent, and I’m squatting here until teh time runs out. Tick, tick, tick.”
As I’m reading it, “adverse possession” is predicated on the hopeful actually using the land. Since he most certainly is not the owner, and it’s the person actually residing there who is establishing an interest, why should the title go to him and not the renter?
cathaireverywhere
Interesting discussion of all of this. I am beyond frustrated with the whole mortgage mess right now, because we are paying the price for all the greed and gambling. We bought our house in June 2006. Fixed rate etc. etc. We had 75% loan to value, so didn’t have to have Mortgage insurance. (which now, thanks to the crash, is closer to 120% L to V) We’re current on everything, and just want to refinance to a lower interest rate using HARP. We’ve been calling our mortgage service provider (Citimortgage/Freddie Mac) over and over for over a year and have been appalled by how little knowledge the workers there have. After many, many phone calls and much time the teh Google, we have finally determined that when our loan was sold, a year or so after we bought the house, it was bundled with other, probably riskier loans and pool insurance was put on it. Since our loan has pool insurance on it, and is probably sliced up all over the place, we don’t qualify for HARP. Our area was a big part of the boom, and now is a big part of the bust. Lots of people just walking away from their houses, and the program that was meant to help the responsible middle class is set up to not help most of them. We should have done what our friends children did- they bought a huge house with 100% financing, borrowed money to put in a pool, then walked away/short sold it and are now renting a huge house in another town. It makes me so mad!
cathaireverywhere
and let me tell you, those mortgage companies doing everything they can to keep people from knowing what is really going on.
Mnemosyne
@cathaireverywhere:
Take this with a grain of salt, because I don’t know much about refinancing, but is there a credit union you could join and refinance through instead of going through your original mortgager? Then at least the odds are much lower of it being re-sold and sliced up.
cathaireverywhere
The problem we have is that we are a little underwater, so it has to be done through the mortgage people we have now with the HARP program, or so we have been told. That’s a good suggestion, though. I’ll check with our local credit union and just see. The more I read about the mortgage mess and the royal screwing the middle class is getting over it, the more I can’t believe no one has gone to jail.