Senate Bill 1142 was sent to Governor Scott today. This bill reforms adverse possession in Florida. Generally, adverse possession allows people to acquire title to property owned by someone else after they have used it as if it were his own in some specified way for a number of years. In Florida, this ancient English doctrine of property law is defined in chapter 95, Florida Statutes. Under Florida law, there are two ways to adversely possess property. First, a person can adversely possess by actually possessing it and claiming color of title, or claiming a right to it based on a recorded document, for seven years. Second, a person can actually possess a property and, within the first year of possession, file a claim with the county property appraiser's office. Under this method, the person also has to pay property taxes during the seven year possession period.
SB 1142 amends the current law to make it harder to acquire property by adverse possession by paying taxes on a parcel. Currently, there is no requirement that a property owner be notified that someone has stepped in to pay taxes on the property. It requires property appraiser to notify the rightful property owner when someone files for adverse possession with the appraiser. When filing, the possessor must disclose the intended use of the property.
The bill was passed unanimously in both the House and the Senate because there is a perception that some property owners are being taken advantage of. Because there are so many vacant homes in Florida now, after the residential housing market bust, it's not hard to imagine that might be the case. There has only been a small bit of media coverage on the bill. Most of it has been neutral, probably because of the complexity of the arcane law. The Florida Realtors have reported seeing this. One article describes some of the abusive practices. An interesting blog post condoned the practice as a sort of sticking-it-to-the-man. Senate staffers don't believe that this will affect many Floridians. While that's probably true, landowners--especially those away from Florida for significant periods of time--should keep abreast of this bill in order to monitor their properties. If Governor Scott signs it, property owners will be able to rest a bit easier.
June 3, 2011 - Governor Scott signed SB 1142 into law yesterday (June 2). It becomes effective July 1, 2011.
Monday, May 23, 2011
Tuesday, May 17, 2011
Florida's Growth Management Reform Prohibits Comprehensive Plan Amendment Referenda
As most Floridians have probably heard by now, Florida's 2011 Growth Management Reform legislation, the Community Planning Act, passed in the form of HB 7207. The summary Governor Scott is expected to sign the bill into law soon. He has championed major reform in Florida's system since his campaign.
The media has had a field day with this legislation. It's been described as a repeal of Florida growth management laws and the Build Baby Build Act. Even so, they've completely missed the ball. Beyond industry-specific coverage, the only positive comments I've been able to find are in the relatively limited scope of blogs by practitioners Robert Lincoln and Rosa Schechter. For more detailed commentary, Hopping Green & Sams released a summary and analysis of the bill today. This is a great summary of the bill's 349 pages.
I hope to offer more commentary on the bill eventually, as there are some interesting provisions that have not been discussed in detail anywhere yet. Section 7 of the bill, for example, prohibits any comprehensive plan amendment referenda. Current law only prohibits a referendum if it affects five or fewer parcels. If this sounds familiar, it should. During the 2010 election cycle, Florida Hometown Democracy ran a failed campaign to require, by operation of the Florida Constitution, votes on every comprehensive plan change. Floridians wisely voted it down, but they were clearly spooked. Section 7 should provide some comfort to Floridians that we won't all have to repeat the mistakes of the referendum boondoggle in St. Pete Beach. That city also realized its solution was unworkable and did away with its referendum process this March. This is just one of a bundle of victories for small enterprise out of this year's legislative session.
June 3, 2011 - A reader commented that, as the Florida Chapter of the American Planning Association points out (link downloads a word document), "any amendment adopted prior to this act that was subject to a voter referendum by local charter can be readopted by ordinance and not subject to challenge."
The media has had a field day with this legislation. It's been described as a repeal of Florida growth management laws and the Build Baby Build Act. Even so, they've completely missed the ball. Beyond industry-specific coverage, the only positive comments I've been able to find are in the relatively limited scope of blogs by practitioners Robert Lincoln and Rosa Schechter. For more detailed commentary, Hopping Green & Sams released a summary and analysis of the bill today. This is a great summary of the bill's 349 pages.
I hope to offer more commentary on the bill eventually, as there are some interesting provisions that have not been discussed in detail anywhere yet. Section 7 of the bill, for example, prohibits any comprehensive plan amendment referenda. Current law only prohibits a referendum if it affects five or fewer parcels. If this sounds familiar, it should. During the 2010 election cycle, Florida Hometown Democracy ran a failed campaign to require, by operation of the Florida Constitution, votes on every comprehensive plan change. Floridians wisely voted it down, but they were clearly spooked. Section 7 should provide some comfort to Floridians that we won't all have to repeat the mistakes of the referendum boondoggle in St. Pete Beach. That city also realized its solution was unworkable and did away with its referendum process this March. This is just one of a bundle of victories for small enterprise out of this year's legislative session.
June 3, 2011 - A reader commented that, as the Florida Chapter of the American Planning Association points out (link downloads a word document), "any amendment adopted prior to this act that was subject to a voter referendum by local charter can be readopted by ordinance and not subject to challenge."
Wednesday, May 4, 2011
First District Court of Appeals reverses decision declaring Florida's 2009 growth management bill unconstitutional
Florida's 2009 growth management bill may have another chance. On May 2, Florida's First District Court of Appeals reversed a decision that had declared SB 360 (2009) unconstitutional. Atwater v. Weston, 2011 WL 1634234, Case No. 1D10-5094 (Fla. 1st DCA 2011). The Florida Legislature passed the bill in 2009, intending to correct problems with Florida's growth management laws. The bill extended all local development orders by two years. It moved to away from requiring developers to pay for road improvements, known as transportation concurrency. It instituted a mobility fee instead to finance transportation infrastructure. SB 360 also gave cities and counties the option to exempt other areas from transportation concurrency. Finally, it exempted "Dense Urban Land Areas" from undergoing Development of Regional Impact review, Florida's process for reviewing large developments.
Within a month of Governor Crist signing the bill, a coalition of local governments filed suit. They claimed it violated the Florida Constitution's mandate in against laws with more than a single subject. They also claimed it violated the Florida Constitution by imposing an unfunded mandate on counties and municipalities. The circuit court in Leon County agreed and entered summary judgment on grounds the bill imposed an unfunded mandate.
The First District Court of Appeals reversed and remanded the case for dismissal. It did not reach these constitutional questions. Instead, it found that the group of governmental plaintiffs did not sue the proper defendants. They sued the Governor, individual legislators, and others because they were improper plaintiffs. They might have been proper, had the action involved "a broad constitutional duty of the State implicating specific responsibilities." Instead, it held the proper party was the secretary of the Department of Community Affairs because the secretary would have enforced the law.
The decision may not mean much, however, for growth management in Florida. With the proposals moving through the Legislature that intend to scale back state oversight of growth management, it may become a moot point. The bill that looks set to pass would eliminate "concurrency," a requirement that was intended to make development and growth pay for itself, but which has been widely criticized lately.
Within a month of Governor Crist signing the bill, a coalition of local governments filed suit. They claimed it violated the Florida Constitution's mandate in against laws with more than a single subject. They also claimed it violated the Florida Constitution by imposing an unfunded mandate on counties and municipalities. The circuit court in Leon County agreed and entered summary judgment on grounds the bill imposed an unfunded mandate.
The First District Court of Appeals reversed and remanded the case for dismissal. It did not reach these constitutional questions. Instead, it found that the group of governmental plaintiffs did not sue the proper defendants. They sued the Governor, individual legislators, and others because they were improper plaintiffs. They might have been proper, had the action involved "a broad constitutional duty of the State implicating specific responsibilities." Instead, it held the proper party was the secretary of the Department of Community Affairs because the secretary would have enforced the law.
The decision may not mean much, however, for growth management in Florida. With the proposals moving through the Legislature that intend to scale back state oversight of growth management, it may become a moot point. The bill that looks set to pass would eliminate "concurrency," a requirement that was intended to make development and growth pay for itself, but which has been widely criticized lately.
Subscribe to:
Posts (Atom)