Batterbee v. Roderick, Case No. 2D18-2037 (Fla. 2d DCA Aug. 30, 2019), shows just how deep the roots of Florida adverse possession law run: the Second District’s reasoning relies in part on Coogler v. Rogers, 7 So. 391 (Fla. 1889) — a decision more than 130 years old. Read the full opinion here: Batterbee v. Roderick (PDF).
Facts / What Happened
The dispute involved a mobile home and its lot in a Sebring mobile home park, owned since 1993 by the Wylma L. Hinkley Trust, with Wylma Hinkley as trustee. In 2008, Wylma asked her son Scott to move into the home, and Scott and his then-girlfriend, Suzann Batterbee, took exclusive possession.
In 2009, shortly after Scott and Suzann married, Wylma executed a quitclaim deed conveying the property to Scott — but the deed did not state that she was signing as trustee of the trust that actually owned the property, so it was legally ineffective. No one realized the problem at the time. Scott recorded the deed on August 27, 2009, and he and Suzann lived on the property openly and exclusively, improved it, and paid all applicable taxes — possessing it as if they were its true owners.
Wylma died in 2011, and her daughter, Merri Roderick, became successor trustee. Merri first learned of Scott and Suzann’s ownership claim during their 2014 divorce proceedings, and in 2015 she recorded a corrective quitclaim deed returning the property to the trust. The divorce court nevertheless awarded the home to Suzann, and when Suzann died later that year, her interest passed to her brothers, Michael and Dennis Batterbee; Dennis conveyed his share to Michael.
On March 1, 2017, Michael sued the trustee to quiet title based on adverse possession. After a bench trial, the Highlands County circuit court ruled for the trustee, reasoning that possession remained permissive — Wylma had invited Scott onto the property, and that permission was never revoked.
Issue
Adverse possession under color of title requires seven years of possession that is actual, open, visible, notorious, continuous, and hostile to the true owner. § 95.16(1), Fla. Stat.; Douglass v. Aldridge, 105 So. 145 (Fla. 1925). Hostility was the only element in dispute: when occupancy begins with the owner’s permission, does accepting and recording a deed — even a legally invalid one — transform permissive use into hostile possession? Or does permissive use continue until the owner revokes permission or actually learns of the adverse claim?
Holding
Reversed. Scott’s possession became hostile when he accepted delivery of and recorded the August 27, 2009 quitclaim deed in the good-faith belief that it made him the owner. Because more than seven years of adverse possession had accrued by the time Michael filed suit on March 1, 2017, the Second District remanded with instructions to enter judgment quieting fee simple title in Michael Batterbee.
Rationale
Use that begins with permission is presumed to stay permissive, and it becomes adverse only when the occupant either uses the property inconsistently with the permission given or notifies the owner in a clear, positive, and distinct way that he claims ownership. Turner v. Wheeler, 498 So. 2d 1039 (Fla. 1st DCA 1986); Hollywood, Inc. v. Zinkil, 403 So. 2d 528 (Fla. 4th DCA 1981). The trial court thought only a revocation of permission could end the permissive use, but the appellate court disagreed: Scott asserted a hostile right when he accepted and recorded a deed he believed conveyed the property to him, then occupied, improved, and paid taxes on it as his own.
The deed’s invalidity did not matter — possession under a defective written instrument is exactly what color-of-title adverse possession under section 95.16 contemplates. Nor did it matter that the successor trustee knew nothing of the claim until 2014: open and notorious possession under claim of title is the equivalent of notice to the true owner, and an owner who fails to look after his interests has only himself to blame. Harrison v. Speer, 114 So. 515 (Fla. 1927).
Finally — the 1889 connection — Florida has long allowed an adverse possessor to add (“tack”) his predecessors’ time in possession to his own, a principle the court traced to Coogler v. Rogers, 7 So. 391 (Fla. 1889). Michael could therefore combine Scott’s and Suzann’s possession with his own to satisfy the seven-year statutory period.
Adverse Possession in Florida: With and Without Color of Title
Florida recognizes two paths to adverse possession, and both require seven years of the same kind of open, notorious, continuous, and hostile occupation. The first, at issue in Batterbee, is adverse possession under color of title: the occupant enters under a written instrument — typically a deed that turns out to be defective — that has been recorded, and then possesses the property described in it. § 95.16, Fla. Stat.
The second path is adverse possession without color of title under section 95.18, Florida Statutes. There, the occupant has no written instrument at all, so the Legislature imposes stricter requirements: the claimant must pay all outstanding taxes and matured installments of special improvement liens on the parcel and file a return with the county property appraiser within the statutory window, in addition to maintaining the same seven years of hostile occupation.
Batterbee illustrates why the distinction matters. Because Scott held a recorded (if invalid) deed, his claim proceeded under color of title, and the invalid deed itself became the very thing that marked the moment his possession turned hostile. An invalid deed is not a dead end — in the right circumstances, it is the beginning of an adverse possession claim.
Why an 1889 Decision Still Matters
Property law prizes stability, and Florida courts still reach back to the earliest decisions of the state’s Supreme Court when the principles remain sound. In Coogler v. Rogers, decided in 1889, the court recognized that successive possessors in privity with one another may combine their periods of possession to satisfy the statutory period — the doctrine now known as tacking.
More than a century later, that same doctrine allowed Michael Batterbee — who personally possessed the property only briefly — to stand on the shoulders of Scott’s and Suzann’s years of occupation. When a court quiets title in 2019 using an 1889 precedent, it is a reminder that real property rights in Florida are built on rules of remarkable longevity.
(And no — despite this post’s tag, Blackbeard was not involved. Though it must be said: openly and notoriously holding property that isn’t yours was rather his specialty. He simply never kept anything for the full seven years.)
Takeaways for Property Owners and Trustees
First, trust formalities matter. The entire dispute traces back to a single omission: a deed signed by the right person in the wrong capacity. Property held in trust must be conveyed by the trustee in that capacity, or the conveyance may fail — and set the stage for litigation years down the road.
Second, record owners cannot afford to ignore their land. Open, exclusive occupation starts a seven-year clock whether or not the owner actually knows about the adverse claim. Trustees in particular should inventory and inspect trust real estate regularly, because a successor trustee inherits the clock already running.
Third, these disputes are winnable — in both directions — but they turn on evidence: deeds, tax records, dates of occupation, and testimony about permission. Whether you are asserting an adverse possession claim or defending your title against one, an experienced Florida litigator can evaluate where the seven-year clock stands. Learn more about how these cases move through the courts in our Civil Litigation in a Nutshell guide, or contact Cox Law, PLLC to discuss your property dispute.