Is section 95.18(7) the only way a Florida property appraiser can remove an adverse possession notation from the tax roll?

Plain-English summary

Adverse possession is the legal doctrine that lets someone who openly occupies land for long enough eventually claim title. In Florida, a person trying to claim land this way (without a deed or other "color of title") files an adverse possession return, and the property appraiser puts a notation on the parcel's record on the tax roll. The Pinellas County Property Appraiser asked Attorney General Pam Bondi a focused question: once that notation is on the tax roll, is the list of removal conditions in section 95.18(7), as rewritten in 2011, the only way to take it off, or can the appraiser remove it in other situations too?

The AG concluded the statute is the exclusive method. The 2011 amendments (Chapter 2011-107) grew out of a Senate study that found property appraisers had no guidance on when to add or remove these notations. The new statute fixed that by spelling out exactly when a property appraiser "must" remove the notation: when the claimant withdraws the claim in writing; when the owner of record provides a certified court order establishing title; when the appraiser receives a certified recorded deed transferring the property back to the owner of record; or when the owner of record or tax collector shows the owner paid the annual taxes during the claim period. The appraiser noted that "must" cabins discretion as to the listed situations but does not, on its face, forbid action in others. Even so, the AG reasoned that because the Legislature mandated adding the notation on submission of a return, it is up to the Legislature to say when removal is allowed, and it simply did not address other circumstances. To preserve the certainty and uniformity the 2011 law sought, the AG concluded a property appraiser may not remove the notation except in the listed situations. A county officer's powers are limited to those granted, and under expressio unius, authorizing a specific path implies a duty not to take another.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 95.18 and the adverse possession framework have likely been amended since 2012. The list of removal triggers and the Department of Revenue's return form can change. Confirm the current statute and rules before relying on this analysis.

Common questions

Q: How can a Florida property appraiser remove an adverse possession notation from the tax roll?
A: Only in the situations listed in section 95.18(7): the claim is withdrawn in writing; a certified court order establishes the owner's title; a certified recorded deed transfers the property back to the owner of record; or the owner of record paid the annual taxes during the claim period.

Q: Can the appraiser remove the notation in some other situation that seems fair?
A: No. The AG concluded the listed conditions are exclusive. Because the Legislature mandated adding the notation and specified when it comes off, the appraiser cannot remove it in unlisted circumstances.

Q: Does this apply to adverse possession claims with a deed (color of title)?
A: The opinion addressed claims without color of title under section 95.18. Adverse possession founded on a written instrument is governed by separate provisions.

Q: Do the 2011 rules apply to claims filed before the law took effect?
A: Yes. The opinion noted the changes apply to adverse possession claims for which the return was submitted before, on, or after July 1, 2011, so they operate both retroactively and prospectively.

Background and statutory framework

Section 95.18 governs adverse possession without color of title. As amended by Chapter 2011-107, Laws of Florida, it requires the property appraiser to add a clear notation on the parcel record when an adverse possession return is submitted, to notify the owner of record, and it directs the Department of Revenue to create a uniform return form. Subsection (7) then lists the conditions under which the appraiser "must" remove the notation. The Legislature's use of "must" signaled a mandate.

The AG's exclusivity conclusion rested on the limited-authority principle for county officers (Art. II, s. 5(c), Fla. Const., powers and duties fixed by law; White v. Crandon, 156 So. 303 (Fla. 1934)) and the canon expressio unius est exclusio alterius (Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80 (Fla. 2000), quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898 (Fla. 1996); Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944)). Reading the statute in light of its purpose, to bring certainty and uniformity to how appraisers handle these claims, reinforced the exclusive reading.

Citations and references

Statutes, constitution, and session laws:

• s. 95.18, Fla. Stat. (adverse possession without color of title; property appraiser duties)
• s. 95.18(7), Fla. Stat. (exclusive conditions for removing the tax-roll notation)
• s. 95.18(4), Fla. Stat. (notation added on submission of a return; owner notice)
• Ch. 2011-107, Laws of Fla. (2011 amendments to section 95.18)
• Art. II, s. 5(c), Fla. Const. (powers and duties of county officers fixed by law)

Cases:

• Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80 (Fla. 2000), expressio unius est exclusio alterius
• Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898 (Fla. 1996), same canon
• White v. Crandon, 156 So. 303 (Fla. 1934), public officers may act only as authorized
• Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944), specific authorization implies a duty not to proceed otherwise

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/property-appraisers-adverse-possession-claim
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1632

Original opinion text

The Honorable Pam Dubov

Pinellas County Property Appraiser

County Courthouse, 2nd Floor

315 Court Street

Clearwater, Florida 33756

Attn: Ms. Christina LeBlanc

RE: PROPERTY APPRAISERS – REAL PROPERTY – ADVERSE POSSESSION – TAX ROLLS – property appraiser's authority to remove notation of adverse possession claim from tax roll. s. 95.18, Fla. Stat.

Dear Ms. Dubov:

Through your counsel, Ms. Christina LeBlanc, Senior Assistant County Attorney, you have requested my opinion on substantially the following question:

Is section 95.18(7), Florida Statutes, as amended by section 1, Chapter 2011-107, Laws of Florida, the exclusive method by which the property appraiser may remove an adverse possession notation from the legal description on the tax roll?[1]

In sum:

Section 95.18(7), Florida Statutes, as amended by section 1, Chapter 2011-107, Laws of Florida, constitutes the legislatively prescribed method by which the property appraiser may remove an adverse possession notation from the legal description on the tax roll for claims of adverse possession without color of title.

During 2009-10, the Florida Senate Committee on Judiciary reviewed Florida's statutory adverse possession framework and identified potential reforms to the adverse possession process with a particular emphasis on landowners who had been subject to adverse possession claims.[2] Among the problems identified by the committee's report was the administration of adverse possession claims by Florida's property appraisers:

"Property appraisers do not currently have guidance regarding how to administer the adverse possession return once it has been submitted by the adverse possessor. The report noted that the Legislature could explore the option of prescribing the process for adding the adverse possessor to the parcel information on the tax roll, as well as when a property appraiser may remove the adverse possessor from that parcel information and remove the adverse possession return from the official records."[3] (e.s.)

The language of the statute upon which your question is based is the Legislature's attempt to provide guidance in administering an adverse possession return and to address the issue of when a property appraiser may remove the adverse possessor from the parcel information on the tax roll. Chapter 2011-107, Laws of Florida, amends section 95.18, Florida Statutes, the statutory process for gaining title to real property by an adverse possession claim without color of title. The bill amending section 95.18, Florida Statutes, made a number of changes to the statute; among those is the requirement that the property appraiser provide notice to the property owner of record that an adverse possession claim has been made.[4] The amended statute also requires the Department of Revenue to develop a uniform adverse possession return to initiate the adverse possession claim and requires that the adverse possessor attest to the truthfulness of the information contained on the form under penalty of perjury.[5] Thus, the statute now provides specific legislative direction as to when the property appraiser must add and remove the adverse possessor to and from the parcel information on the tax roll.

Section 95.18, Florida Statutes, relates to real property actions for adverse possession without color of title[6] and, as amended by section 1, Chapter 2011-107, Laws of Florida, requires that the property appraiser add certain information relating to the adverse possession claim to the parcel information on the tax roll. This statute also prescribes conditions for the removal of that information:

"(7) A property appraiser must[7] remove the notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser's records if:

(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;

(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record;

(c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or

(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession."

The statute requires the property appraiser to include "a clear and obvious notation in the legal description of the parcel information of any public searchable property database maintained by the property appraiser that an adverse possession return has been submitted to the property appraiser for a particular parcel."[8] The amendments contained in Chapter 2011-107, Laws of Florida, became effective July 1, 2011, and the act specifically provides that the changes to section (7) set forth above "apply to adverse possession claims for which the return was submitted before, on, or after that date."[9] Thus, the provisions relating to the duties and responsibilities of the property appraiser with regard to the notation of an adverse possession claim apply to claims submitted on tax returns before, on, or after July 1, 2011, and are retroactive as well as prospective.

As a county officer, the property appraiser's powers and duties are measured by the terms of his or her grant of constitutional or statutory authority and are limited to those powers expressly granted.[10] Moreover, "under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another."[11] Thus, the authority of public officers to proceed in a particular way or only upon specific conditions implies a duty not to proceed in any manner other than that which is authorized by law.[12]

Section 95.18, Florida Statutes, as amended by section 1, Chapter 2011-107, Laws of Florida, is clear in its terms and provides authorization for the property appraiser to act as directed by the Legislature. Further, the Legislature has used the term "must" in its direction to the property appraiser in section 95.18(7), Florida Statutes, indicating a legislative mandate and obligation on the property appraiser to perform his duties and responsibilities as legislatively directed.

In construing a statute the courts will review the purpose of the legislation, examining such things as the history of the act, the evil to be corrected, the intention of the law-making body, the subject regulated, and the object to be obtained by the legislation.[13] As discussed above, the legislative committee considering the statutory adverse possession framework sought to rectify the lack of legislative guidance "regarding how to administer the adverse possession return" and to clarify "when a property appraiser may remove the adverse possessor from that parcel information and remove the adverse possession return from the official records." This suggests that the Legislature intended Chapter 2011-107, Laws of Florida, to be comprehensive in its treatment of adverse possession claims not founded upon a written instrument.

You ask whether section 95.18(7), Florida Statutes, represents the exclusive circumstances in which the property appraiser may remove the adverse possession notation or whether the statute may provide authority for the property appraiser to remove the notation under other circumstances. The Legislature's use of the term "must," rather than "may," in section 95.18(7) makes your question a difficult one. While "must" cabins the property appraiser's discretion in relation to the circumstances listed in section 95.18(7)(a) through (d), Florida Statutes, that term does not on its face preclude action in other circumstances. Nonetheless, I note that the Legislature in section 95.18(4)(c), Florida Statutes, mandates the addition of the tax roll notation "upon the submission of a return." Having issued that mandate, it is up to the Legislature to specify when the notation is no longer required. Intentionally or not, the Legislature simply did not address the circumstances spelled out in your letter. For that reason, and to preserve the certainty and uniformity that the Legislature sought to achieve in Chapter 2011-107, Laws of Florida, I conclude that a property appraiser may not remove an adverse possession notation in circumstances other than those listed in section 95.18(7), Florida Statutes.

In sum, it is my opinion that section 95.18(7), Florida Statutes, as amended by section 1, Chapter 2011-107, Laws of Florida, constitutes the legislatively prescribed method by which the property appraiser may remove an adverse possession notation from the legal description on the tax roll for claims of adverse possession without color of title.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] Your letter poses several mixed questions of law and fact. The Florida Attorney General is limited to addressing questions of law and your questions have been reframed to allow this office to comment. See s. 16.01(3), Fla. Stat., and Department of Legal Affairs Statement Concerning Attorney General Opinions.

[2] See The Florida Senate Bill Analysis and Fiscal Impact Statement for SB 1142, dated March 31, 2011.

[3] Id.

[4] Section 95.18(4), Fla. Stat. (2011).

[5] See DR-452, Return of Real Property in Attempt to Establish Adverse Possession Without Color of Title and 12DER11-16, Fla. Admin. C., effective 8/11.

[6] See title to s. 95.18, Fla. Stat.

[7] The word "must" is defined as "to be obliged or bound to by an imperative requirement[,]" see Webster's New Universal Unabridged Dictionary p. 1269 (2003); and "[u]sed as an auxiliary to indicate: 1. Necessity or obligation[,]" The American Heritage Dictionary p. 452 (office ed. 1983). Thus, the word would appear to represent a legislative mandate.

[8] Section 95.18(8), Fla. Stat. (2011).

[9] Section 4, Ch. 2011-107, Laws of Fla.

[10] See generally Art. II, s. 5(c), Fla. Const., stating that "[t]he powers [and] duties of . . . county officers shall be fixed by law."

[11] Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85 (Fla. 2000), quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996).

[12] White v. Crandon, 156 So. 303, 305 (Fla. 1934); Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944).

[13] Smith v. Ryan, 39 So. 2d 281 (Fla. 1949); State Board of Accountancy v. Webb, 51 So. 2d 296 (Fla. 1951); DeBolt v. Department of Health and Rehabilitative Services, 427 So. 2d 221 (Fla. 1st DCA 1983); Ops. Att'y Gen. Fla. 99-61 (1999) (in construing statute, court will consider its history, the evil to be corrected, the purpose of the enactment, and the state of the law already in existence), 98-82 (1998), and 96-07 (1996).