Obscure law used on Daytona property seizures

Article Courtesy of The  Daytona Beach News-Journal

By Eileen Zaffiro-Kean

Published June 6, 2017  


DAYTONA BEACH — There’s no way in the United States in the 21st century that someone could just take over your property, right?

Guess again.

A man using a little-known law to seize vacant buildings and land on Daytona’s beachside isn’t getting too far.


It’s been happening all over the country for decades, and under the right circumstances it’s perfectly legal. Unauthorized property seizure can happen with something called “adverse possession” — occupying land you don’t have title to and following a process to become the rightful owner.

There have been at least 20 formal adverse possession attempts in Volusia County since the end of 2015, a pittance compared to some other Florida counties.

“In 2011, the Polk County Property Appraiser’s Office had over 800 adverse possession claims,” said Janice Cornelius, Volusia County’s chief deputy property appraiser.

The good news for landowners is that people who attempt to take property through adverse possession have a legal mountain to climb, and many squatters never get too far past base camp.

A little over four years ago, a 23-year-old man slipped into a vacant $2.5 million Boca Raton mansion that had been foreclosed on and was owned by a bank. Andre Barbosa, a Brazilian national, invoked adverse possession and managed to stay in the 7,200-square-foot waterfront home for about six weeks before authorities determined they could go after him on trespassing charges and changed the locks while he was gone.

Tharbs said he never stayed at the home on Euclid, another strike against his effort to seize it through adverse possession. He said he just drove by the little house built in 1952, which has two boarded-up windows, and it looked abandoned to him.

Dale Martin was almost free of problems with his rental home at 342 Euclid Ave. in Daytona Beach he asked a bank to foreclose on. Now someone is trying to seize the vacant property through a legal procedure called adverse possession.

Now Tharbs appears to be backing away from a battle with Martin.

“It’s his property,” Tharbs said. “I understand that. I’m not trying to take anything from no one.”

Martin, who’s 65, said the legal tussle has been a headache he didn’t need. Martin used to own several rental homes in eastern Volusia County, but he got tired of being a landlord and gradually got rid of all of them but the Euclid Avenue home. When his legs were severely injured in a motorcycle accident, he decided he couldn’t keep up with that rental property, which is near the beachside home where he lives.

He told the bank they could have the house that’s been sitting vacant for three years, and he was getting close to being clear of it when he was served in late April with a summons on Tharbs’ adverse possession action. Since Tharbs has never lived in the Euclid Avenue home or paid property taxes on it, Martin is confident Tharbs will lose his fight.

“I’m going to try to corner him,” Martin said. “I’m trying to show he maliciously abused the system.”

In recent weeks, some people on Daytona’s beachside got an education on adverse possession when they found out a man living in a home south of International Speedway Boulevard wasn’t the owner or a renter.

That man, Timothy Tharbs, moved into 404 Revilo Blvd. in January 2016. A month later he quietly filed an adverse possession claim for the 89-year-old home with absentee owners based in south Florida.

Last month, after neighbors repeatedly complained about Tharbs, his visitors, and the dilapidated one-story structure, city officials determined the home was unsafe for anyone to live in and ordered Tharbs and his wife to move out by the next day.

Last year Tharbs also tried to get a 70-year-old Daytona Beach oceanfront motel long past its prime through adverse possession. And in April, Tharbs filed his third adverse possession claim in Volusia County against a beachside home north of Seabreeze Boulevard that has been sitting empty for years while it slogs through a foreclosure ordeal.

Dale Martin, the owner of that home at 342 Euclid Ave., is a retired attorney. He’s using his legal knowledge to keep Tharbs off his property and teach him a lesson in the process.

“I read the suit and said, ‘this man is out of his mind. He can’t do this,’ ” Martin told The News-Journal.

Martin filed a counter claim and asked for punitive damages “so he doesn’t do this to anyone else” and to stop Tharbs’ “malicious abuse of the court process to pursue frivolous complaints.”


People can try to claim both residential and commercial property through adverse possession, but government-owned property is immune.

Under Florida law, the person who wants to establish title adversely has to be in “open, notorious, continuous and exclusive” possession and control of the property for at least seven years. That possession also has to be without the owner’s permission.

Within one year of possessing a property, the person trying to gain title has to notify the property appraiser’s office and fill out a Florida Department of Revenue form explaining the claim.

A claimant has to pay property taxes for seven consecutive years before filing a lawsuit for title. But if the current owner pays the taxes during any of those seven years, the claimant has to restart the adverse possession process. A tax payment made on time by the owner of record has priority over payment by a claimant.

“A lot of the claims we receive are removed after the first year as the owner of record’s tax payment is accepted first,” Cornelius said.

The property appraiser’s office also notifies the current owner that adverse possession has been filed on their property, so they can jump in and fight the attempt. Police can also put an end to a claim.

“There have been many stories about people occupying properties with just an adverse possession claim, but they are usually removed by law enforcement for trespassing,” Cornelius said.

Those pursuing adverse possession have to file documents in the court system including an explanation of why they claim some right, title or interest in the land. They also have to make factual allegations showing the invalidity of the title holder’s claim to the land.

Matthew Welch, an attorney and partner at Daytona Beach’s Cobb Cole law firm, said adverse possession law goes back to the nation’s earliest days when it was more common for people to be nomadic or just abandon property. Adverse possession cases aren’t common locally, but they trended up during the so-called Great Recession and then ebbed when the economy and housing market recovered, he said.

Welch, who specializes in real estate law, said adverse possession is used more often in property disputes with neighbors over things such as a shed someone puts on land next door and it goes unchallenged for seven years or more before a disagreement breaks out.

DeLand attorney Mike Nordman, who has practiced real estate law for 14 years, also said he’s mostly seen adverse possession used for property boundary disputes between neighbors or to straighten out titles after children of deceased parents inherit an estate.

“Rarely is it used for a stranger to show up and try to get title to a house,” Nordman said. “I don’t think it was ever intended for that.”

Some who do try to take over a vacant house can get booted out through ejectment and “quiet title” actions, Welch said. Quiet title filings ask a judge to intervene and settle a title dispute.

Welch said he’s not aware of any local cases that ended with a victorious squatter.

Tharbs told The News-Journal last week he spent most of his life in Indiana and moved to Florida in recent years. The 53-year-old said when he was 19 his father, who owned a candy store and restaurant in Indiana, taught him about property law. Tharbs said he used his knowledge of adverse possession for the first time last year with the Revilo Boulevard home.

He said he has always worked for his father or himself, and now he’s thinking about opening an ice cream parlor. He had a different business venture in mind last year when he tried to get control of the old Sun & Surf Motel at 726 N. Atlantic Ave.

In court papers filed last year as part of his adverse possession action on the rundown motel built shortly after World War II, Tharbs included a handwritten note about his vision for the vacant complex.

“I’m going to rehab it and rent it to help me pay my bills and taxes,” reads the note that includes his signature. “I’m also going to donate to a cancer center to help cure cancer. My company name is Christian City Housing & Management.”

The note went on to explain that “it will be a family project and we will be living on the premises until the court date, fixing and repairing and renovation.”

Florida Division of Corporations records on Sunbiz.org don’t list a Christian City Housing & Management nor any other businesses under Tharbs’ name.

The county government is the owner of 726 N. Atlantic Ave., but deputy county attorney Jamie Seaman said Tharbs has never served the county with his adverse possession lawsuit. The point is probably moot, though, since government property can’t be taken by adverse possession. The county bought the motel in August 2015 and Tharbs’ adverse possession action didn’t start until August 2016.

When Tharbs was told in an interview with The News-Journal last week that the motel buildings had been torn down a few months ago and work has started to turn the site into parking for beachgoers, he said he would probably let go of his battle for that property and his idea to house homeless people there.

It’s not clear how Tharbs would finance any business venture since court records also include his application to obtain civil indigent status. He wrote on the form that his only sources of income were $733 per month in Social Security benefits and $555 in rental income. It’s not clear where the rental income would be generated since Tharbs said on the form he had no equity in real estate.

Tharbs said the Social Security money is for a disability from a car accident. He indicated on the form that he doesn’t have a bank account, savings or any other assets. Tharbs was determined to be indigent, according to the form dated Aug. 17, 2016.

Tharbs said he hasn’t given up on making 404 Revilo Blvd. his home despite being kicked out three weeks ago. On May 12, the city posted no trespassing signs on the badly damaged home that warn its use and occupancy are prohibited.

City Chief Building Official Mike Garrett said the property’s owners have until June 17 to respond to the city’s shutdown of the home and take “corrective actions on the property.” So far the city has not heard from the owner, Libby Investment Group. Nor has the city heard from Tharbs, Garrett said last week.

If no response is received by the deadline, city commissioners could be asked if they want the house to be condemned and demolished, Garrett said. If they decide they want it torn down, the owner will have 20 days to appeal.

Tharbs said he’s still interested in the Revilo Boulevard home, which he said he had started to repair and was going to fix up over time.

“I don’t know why they shut it down,” he said of the termite-infested home with water damage and wiring problems.

But for now he said he’s staying in the Miami area.

“I might come back,” he said.

He said he and his wife, who is pregnant, are homeless and living out of his truck. He said they had to leave 80 percent of their belongings in the home since they had so little time to move out.

He feels the city should have given him a warning before kicking him out, and he should have a chance to talk to a judge.

“I have a lawyer. I may sue,” said Tharbs, who until now has represented himself in the adverse possession cases.

Tharbs might also be out of luck on the Euclid Avenue home he’s trying to take through adverse possession. Bids on the foreclosed home are already being taken for an upcoming online auction, Martin said.