Dadd v. Houde , 2015 Fla. App. LEXIS 13450 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed September 9, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-3044
Consolidated: 3D13-3036
Lower Tribunal No. 10-1233-K
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Ann M. Dadd,
Appellant,
vs.
Richard Houde,
Appellee.
Appeals from the Circuit Court for Monroe County, David Audlin, Jr.,
Judge.
Horan, Wallace & Higgins and R. Bruce Wallace (Key West), for appellant.
Wayne LaRue Smith and Brett Tyler Smith (Key West), for appellee.
Before SHEPHERD, LAGOA and LOGUE , JJ.
SHEPHERD, J.,
This is a boundary dispute involving a strip of land approximately six and
one-half feet wide and seventy-nine and one-half feet long. The strip is contiguous
to the parcel containing Ann Dadd’s home and has been enclosed, along with the
rest of the Dadd property, by a substantial fence since 1976 or earlier. However,
the strip is within the legal description of the property owned by her next-door
neighbor, Richard Houde. The Dadd property is located at 701 Catherine Street,
Key West, Florida, and the Houde property is located at 703 Catherine Street.
Dadd acquired the property in 1989 by warranty deed from the Estate of one
Richard Wood. Houde acquired his property by warranty deed in 2001.
In 2010, as Dadd undertook improvements on the fence, Houde contested
the placement of the fence and the location of the property line. Dadd then filed
suit to quiet title of the disputed strip by adverse possession up to the fence line,
pursuant to the 1974 version of section 95.16 of the Florida Statutes. Houde
counterclaimed to eject Dadd from the disputed strip on the strength of the written
conveyance of the property he received from his predecessor in interest in 2001,
which included the disputed strip within the legal description. After a bench trial,
the court held in favor of Houde on the strength of his long-standing title, and
entered an order of ejectment of Dadd from the disputed property. We find the
trial court misapplied the statute.
ANALYSIS
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Section 95.16, as it appears today in the Florida Statutes, would compel
affirmance. See Seton v. Swann, 650 So. 2d 35, 37-38 (Fla. 1995) (holding that
the “first step” necessary to prove a claim of adverse possession without payment
of taxes on the land is “an instrument upon which the claim of title is founded . . .
recorded in the official county records [which] describe[s] the disputed property.”).
Dadd does not dispute that principle. Rather, she redirects us to the earlier version
of section 95.16, pursuant to which she contended below and continues to contend
here that title to the disputed strip vested in Wood and subsequently passed to her.
That version, adopted by the state legislature as Chapter 74-382, §§ 11-12, at 1212-
13, Laws of Florida (1974), effective January 1, 1975, appeared in consolidated
form in the 1974 Supplement to the Florida Statutes.1 The chapter law, as
consolidated in 1974, read as follows:
95.16 Real property actions; adverse possession under color of title. –
(1) When the occupant, or those under whom he claims, entered into
possession of real property under a claim of title exclusive of any
other right, founding the claim on a written instrument as being a
conveyance of the property, or on a decree or judgment, and has for
seven years been in continued possession of the property included in
the instrument, decree, or judgment, the property is held adversely. If
1 Section 95.17, Florida Statutes (1974 Supplement), states that the section was
“Transferred to s. 95.16 and amended by s. 12, ch. 74-382, effective January 1,
1975." The consolidation was not dictated by the state legislature. It appears the
consolidation was done by the Statutory Revision and Indexing Division of the
Joint Legislative Management Committee, a legislatively created committee
empowered at the time to “transfer” any “section, chapter or law . . . from one
location to another.” See § 11.242(5)(e), Fla. Stat. (1973).
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the property is divided into lots, the possession of one lot shall not be
deemed a possession of any other lot of the same tract. Adverse
possession commencing after December 31, 1945 shall not be deemed
adverse possession under color of title until the instrument upon
which the claim of title is founded is recorded in the office of the clerk
of the circuit court of the county where the property is located.
(2) For the purpose of this section, property is deemed possessed in
any of the following cases:
(a) When it has been usually cultivated or improved.
(b) When it has been protected by a substantial enclosure. All
contiguous land protected by the enclosure shall be property included
within the written instrument, judgment, or decree, within the purview
of this section. . . .
Ch. 74-382, §§ 11-12, at 1212-13, Laws of Fla. (1974). Although one might be
forgiven for concluding otherwise based upon a plain reading of the consolidated
statute, the Florida Supreme Court, after 1974, construed the statute to mean “one
does not have to have paper title correctly describing the disputed property as long
as that area is contiguous to the described land and ‘protected by a substantial
enclosure.’” Seddon v. Harpster, 403 So. 2d 409, 411 (Fla. 1981) (citing § 95.16,
Fla. Stat. (Supp. 1974)).
Unrebutted testimony shows that the fence enclosed the disputed strip of
land as far back as 1976, during Richard Wood’s ownership of 701 Catherine
Street. The fence continued in place after Dadd acquired her title in 1989. Section
95.16 did not require a written instrument describing the disputed property to
establish color of title until 1987. See Ch. 87-194, § 1, at 1255, Laws of Fla.
(1974); Seton, 650 So. 2d at 37-38. By 1983, and certainly well before 1987,
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Richard Wood had met all of the requirements of section 95.16 as construed by the
Florida Supreme Court. Wood held lawful title to the property against all the
world by adverse possession, just as if it had been described and included in the
deed he received from his predecessor. This was so even if, as alleged by Houde,
Dadd knew at the time she purchased the property that Wood did not have paper
title to the strip. Similarly, Dadd’s efforts after purchase to “cure” the paper title
deficiency by a series of corrective quitclaim deeds from Wood are irrelevant to
the outcome of the case.
The reason is that the possessor’s burden in an adverse possession case,
albeit by a heightened clear and convincing standard, is to prove only that the
property was possessed “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.” See Douglass v. Aldridge, 105 So. 145, 146 (Fla. 1925). If
proven, then title to the disputed parcel vests as a matter of law in the possessor
and his successors. See Birtley v. Fernandez Co., 392 So. 2d 29, 291-92 (Fla.
1980) (“[W]here an occupant of property under color of title openly and
notoriously is in continuous actual possession of property in opposition to the
rights of the true owner for a period greater than seven years, then he is holding the
property adversely. [internal citation omitted]. Such adverse possession of real
property causes real title of the property to vest in the possessor and his
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successors.” .) (emphasis added). Being the lawful successor to Wood by
warranty deed in 1989, Dadd succeeded to Wood’s title in the disputed property as
of the date of delivery of that deed as a matter of law. The 1987 amendment to
section 95.16 of the Florida Statutes does not change this result. See Weingrad v.
Miles, 29 So. 3d 406, 411 (Fla. 3d DCA 2010) (“Even where the Legislature has
stated its intent for retroactive application [of a statute], the Florida Supreme Court
has refused to apply the statute retroactively if it impairs vested rights.…”).
For these reasons, we reverse and remand the final judgment of the trial
court with directions to enter judgment quieting title to the disputed parcel in
Dadd.
Reversed and remanded with directions.
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