Sometimes, the current law does not determine the resolution of a current dispute. At times, a court must apply an old law-- even if it has been repealed-- to decide a case, as happened in a recent Florida Court of Appeals case over a boundary dispute.

Ms. Dadd and Mr. Houde were Florida neighbors. Their homes were separated by a substantial fence that enclosed Dadd’s property. In 2010, when Dadd undertook to replace the fence, Houde disputed the location of the fence, claiming that the existing location of the fence was over 6 feet onto his property. (This was correct: the fence was was onto Houde’s property.)

Unwilling to relocate the fence, Dadd filed suit to quiet title. Dadd claimed that title to the disputed strip of land was vested in her under the doctrine of adverse possession—she had owned her property since 1989, and she had always treated the land on her side of the fence as her own. The fence had been in the same place the entire time; in fact, the fence had been in the same place since the mid-1970s, with no objections from the previous owners of Houde’s parcel at any point.

Houde countersued to eject Dadd from the disputed strip. He asserted that his record title to the disputed strip, which he had obtained from the previous owner in 2001, entitled him to the land.

The trial court judge ruled in favor of Houde. The judge applied the current Florida adverse possession statute, which is very restrictive as adverse possession statutes go. The statute requires either that the adverse possessor have paid the taxes on the disputed property, or have “color of title”—a title document with a legal description that would make it appear that the adverse possessor had title to the disputed property. In the typical boundary dispute situation, the possessor, like Dadd here, has neither. So while Dadd had easily satisfied the seven-year possession requirement of adverse possession in Florida, she could not satisfy the requirement of either color of title or tax payment, and Houde prevailed.

Dadd appealed however, and the appeals court ruled in her favor and awarded her the disputed land. The trial court’s error was that it applied the current statute. The current statute had been enacted in 1987, which meant that the prior owner or owners of Dadd’s land had possessed the land for over ten years under the prior version of the adverse possession statute. The prior version of the statute had the same requirements: 7 years possession, with tax payment or color of title; however, it also had a provision that if a parcel was enclosed by a fence, the title which provided color of title would be treated as if it included all the fenced land, not just the portion of the enclosed land described in the legal description.

In Florida (and most other places), title by adverse possession vests in the possessor automatically when the statutory requirements are satisfied. No court action is necessary for this to occur. Thus, when Dadd’s predecessor owner possessed the disputed strip of land for 7 years under the prior statute, title automatically vested in that prior owner, and became part of his or her title to the parcel. When that person transferred title, title to the dispute strip transferred with it. Dadd thus obtained title to the disputed strip when she bought the property.