Florida Real Estate Law: Is “Adverse Possession” Sufficiently “Hostile” If The Possession Is Permitted Because Nobody Realizes That It’s Wrong?

The word “hostile” is usually equated with overt and combative acts, such as actual or threatened violence.  But in the context of adverse possession of real estate, the meaning of “hostile” is much more nuanced.  For example, is the “hostility” requirement of adverse possession satisfied when a person occupies a property pursuant to a defective deed that nobody realizes is defective?  A Florida appellate court has decided that such a situation can satisfy the hostility requirement.  See Batterbee v. Roderick, Case No. 2D18-2037, 2019 WL 4122593, 44 Fla. L. Weekly D2237a (Fla. 2d DCA Aug. 30, 2019).

In Batterbee, the Second District Court of Appeal was faced with a convoluted family dispute involving a defective deed.  None of the relevant parties knew the deed was defective until years after the deed had been issued and recorded.  As detailed by the Court:

At issue is a mobile home and its associated plot in a mobile home park in Sebring, Florida. In 1993 the owner of the property, Wylma Hinkley, transferred it to the Wylma L. Hinkley Trust, for which she served as trustee. In 2008 she asked her son, Scott Hinkley, to move into the home. Scott and his then-girlfriend, Suzann Batterbee, then took exclusive possession. In 2009, shortly after Scott and Suzann were married, Wylma executed a quitclaim deed conveying the property to Scott. Scott also signed the deed. As written, however, the deed did not state that Wylma executed it in her capacity as trustee of the trust that owned the property. Wylma died in 2011, whereupon Scott’s sister, Merri Roderick, succeeded Wylma as trustee of the trust.

The parties agree that the 2009 deed conveying the property to Scott without reference to Wylma’s capacity as trustee was legally ineffective. The evidence suggests that no one was aware of that problem. The trial court found that Scott took delivery of the deed in good faith. Scott recorded the deed, and he and Suzann lived on the property openly and exclusively, improved the property, and paid all applicable taxes; they possessed the property as if they were its true owners.

When Scott and Suzann began divorce proceedings in 2014, they both listed the home as an asset on their financial affidavits. At some point during the divorce, Merri first learned that Scott and Suzann claimed to own the property. In response to this discovery, in 2015 Merri recorded a corrective quitclaim deed purporting to convey the property back to the trust. Apparently, the court hearing Scott and Suzann’s divorce was unaware of Merri’s deed; its 2016 final judgment dissolving the marriage awarded the property to Suzann. She continued to occupy the property until later that year, when she died. Upon Suzann’s death, her interest in the property passed to her brothers, Michael and Dennis Batterbee. Dennis then conveyed his interest to Michael, the appellant here.

Batterbee, 2019 WL 4122593 *1.

The issue presented to the appellate court was whether Scott Hinkley, who was named as the grantee in the 2009 defective deed, and his successors satisfied the requirements for adverse possession.  The appellate court explained the applicable law:  “To support an adverse possession claim, the possession must have been for the full statutory period [of seven years], under claim of right or color of title, and must have been actual, open, visible, notorious, continuous, and hostile to the true owner and to the world at large.”  Id. at *1.

But was the possession “hostile” during the period of time when nobody realized there was a problem with the 2009 deed?  The trial court concluded that the hostility requirement was not satisfied, but the appellate court disagreed:

The [trial] court therefore seemed to conclude that the permissive use could be terminated only by the trustee’s revocation of that permission. We disagree. The issue here is not whether Wylma, as trustee, revoked Scott’s permission to use the property. Rather, it is whether Scott “asserted a hostile right,” Miller, 964 P.2d at 369, or expressed a “clear, positive and distinct notification [to] the owner … that he is claiming the property other than by permission,” Turner, 498 So. 2d at 1042. Clearly, he did so: He accepted delivery of and recorded a deed in the good faith belief that it conveyed ownership to him; he occupied the property, improved it, paid the taxes assessed on it, and otherwise openly treated the property as his. With hostile occupation commencing with the August 27, 2009, deed, Scott and his successors in interest had held the property adversely for more than seven years by the time Michael filed the complaint in this case on March 1, 2017.

The trial court pointed out that Merri was unaware that the property had been taken out of the trust until 2014 and therefore had no reason to object before then. But it was unnecessary for Merri to know of or suspect Scott’s claim of ownership in order for his possession to be adverse and hostile. As explained above, when Scott took delivery of Wylma’s deed, the requirement that he notify his grantor of the adverse claim had been satisfied, and his heretofore permissive occupation ended. From then on, Scott and his successors had no duty to notify Wylma or Merri that they were possessing the property as exclusive owners. Their exclusive, open, and notorious use of the property satisfied the traditional definition of hostility and was constructive notice to Merri…

Id. at *2-3.

Thus, because the evidence demonstrated that Michael Batterbee and his predecessors possessed the subject property in an adverse and “hostile” manner for the full seven-year statutory period, the appellate court reversed the trial court’s decision and concluded that the requirements of adverse possession had been satisfied.

The motto of this story: “hostile” does not carry its traditional meaning in the context of adverse possession law.

Copyright 2019

Matthew J. Meyer, Esq.

Ansa Assuncao LLP

Matthew J. Meyer is a Partner in our Florida office.