What Constitutes Abandoned Property in Florida
Abandonment is a unique form of property disposal. It is not the same as "wasting" property – where ownership still remains with an individual or other entity but with underutilization or loss of value. It is not a process of donation or gift – where the owner willingly transfers title or ownership of the property to a new party. Under Florida law, abandoned property is classified on a very strict statutory basis under Chapter 717, Florida Statutes and must follow exact procedures if it is to be properly disposed of.
A property must meet strict qualifications to be considered "abandoned" under Florida law. Under Chapter 717, Florida Statutes, "Abandoned Property" is defined as: "Any tangible personal property . . . that a person has intentionally relinquished the ownership of, has intentionally deposited and left with the intention of having it disposed of , . . . or has intentionally allowed to go to waste . . . . But the term does not include any debt or demand due and payable and that is collectible by legal process."
Florida’s statutory qualifications for "abandoned property" are an extremely narrow basis for disposing of property. Most individuals and businesses in Florida have rights of ownership over property to which they have not lost a physical or legal connection. In contrast, abandoned property has already severed its contact with its owner, who cannot likely be identified. Abandoned property is something that does not have the value that it once did, often due simply to negligence, lost interest, or lack of care. While the loss in value can sometimes be substantial, even abandoned property can have worth and value to a government.
Procedures to Claim Abandoned Property
To reclaim property, an individual must comply with the stipulations and timeframes set forth in Florida Statutes 704.05. The statute states: (3) Any time before the good faith sale, in the case of personal property, or before issuance of a deed in the case of real property, any person holding an interest in the property may claim the property by serving upon the holder of the property and filing with the clerk of the court in the county where the property is located a notice of claim in the form prescribed by the Administrative Office of the Courts. However, notwithstanding the filing of a notice of claim, if otherwise qualified, the holder may proceed to sell the property at the end of the 60-day notice period. The statute goes on to state: (e) A notice of claim to real property must contain the following, in addition to the information required by subsection (b): 1. An explicit statement of intention to seek ownership of the property through an adverse possession claim under this section. 2. A statement that no child support debt currently exists, as defined in s. 409.25642(5), against the claimant that is governed by a final judgment entered in any circuit in this state. 3. A statement that the claimant has not been convicted of a felony, unless the claimant is the current owner of the property. (f) Any person holding an interest in real property who has made a timely, written claim for ownership of the property pursuant to sub-subparagraph (e)2., and establishes that he or she owes no child support debt under s. 409.25642(5), is entitled to advance notice and an opportunity to be heard on any child support case filed against him or her unless such person has been convicted of a felony. (g) A person serving a notice of claim under paragraph (e) must serve notice of the filing of such notice, in writing, upon the person against whom the claim is being made to the last address of the person known to the claimant, in a manner described in Rule 1.070, Florida Rules of Civil Procedure. For purposes of this section, a reasonable good faith effort to obtain such an address is sufficient. Florida Statutes 715.104 "Termination of Possession of Personal Property" further outlines specific notices that must be provided by the claimant prior to claiming abandoned property.
Comparing Owner vs. Finder Rights
Florida courts have addressed the rights of original owners with respect to lost or abandoned property, as well as the rights of finders against the original owner. In Glover v. Joseph, 1 Fla. 189, 218, 2 So. 550, 551 (1887), the Florida Supreme Court held that "the law has no term so comprehensive as the word ‘possession,’ and one who has actual prior possession, if he can maintain that possession, is the true owner, even as against the original owner." As recognized by one court, this language "reflects an acceptance of the common law by Florida’s Supreme Court." Rios v. Montalvo, 492 So.2d 1166, 1168 (Fla. 3d DCA 1986) (citing Glover). In Moorman v. Woods, 27 Fla. 287, 9 So. 804 (1889), the Court explained: "The general rule is that the possession of personal property is prima facie evidence of the owner’s right of property therein, and of his right to finders. When the plaintiff has possession of the [personal property] in controversy, . . . it devolves upon the defendant to show the weakness and defect of title resulting in a deficiency of title in the plaintiff." In addition to Moorman, Florida courts have also applied to property found offshore statute 267.061(1)(a). Under that statute, an original owner has the right to recover found property up to three years from the date on which it was found.
Timeframes and Statutory Periods
A fundamental question people have about Florida law is always: how long before something is abandoned. In fact, for property to be presumed abandoned, it has to be at least 5 (five) years since it was last used or paid on. A condo buyer would not have a cause of action against the prior owner (the seller) for not paying their Condo Association assessments if the ownership period was less than 5 years. For a bank to foreclose on a condo by an owner who has not been paying maintenance dues, it cannot be for less than five years.
Again, for property to be presumed abandoned in Florida Four (4) should read , "a four year absence or a four year lapse in a contract or lease will also serve as the basis to declare property abandoned after sufficient notice under Florida’s statutes." Yes, a four year lapse of time is enough, not less than five years.
In short, for property to be presumed abandoned in Florida there must be an absence of at least 4 (four) years or a lapse of the contract or lease for 4 (four) years.
While other states certainly have shorter time periods to abandon a condominium or time period to abandon a lease in a commercial condo complex, not in Florida. A 4 year lapse in a contract is all it takes to legally abandon a condominium under a lease.
Unclaimed Property and State Involvement
The state runs a program to reunite owners with their property through the Florida Department of Banking and Finance, commonly known as the "unclaimed property" program. Any assets that cannot be matched to an owner – either because the owner has died or simply cannot be located – may be transferred to the Florida Department of Banking and Finance if the holder is a Florida company, with out-of-state holders required to transfer assets to Florida after five years. To manage unclaimed property, all companies with unclaimed property are required to file the Florida Annual Unclaimed Property Report (FL-U8) on April 30th of each year and remit the payments to the Florida Department of Banking and Finance. There are no extensions for the required filings.
If the unclaimed property is not successfully returned to the owner within four years, the property will be held in trust by the Florida Department of Banking and Finance until the owner contacts the state to retrieve it. In this regard, Florida is like many states in that the property is held in trust indefinitely. Florida Department of Banking and Finance attempts to match owners and the property through its website with the ability for searches to be commissioned by private companies or public entities.
Common Myths and Legal Missteps
A common pitfall to avoid is assuming that property left behind following a divorce becomes the property of the spouse left in possession of the marital home, even if the property is jointly owned. With few exceptions, property acquired during the marriage is joint property that belongs equally to both spouses. Family Courts generally have exclusive jurisdiction over the distribution of jointly owned property, and actions taken by one party with respect to jointly owned property, such as carrying off property at the time of separation, can give rise to claims for equitable distribution against the offending party. Additionally, the transfer or conveyance of property owned with another person may require a Signature of the grantee or Tenant in Clyde v. Clyde 338 So.2d 1009 (Fla. 1st DCA 1976) this Court held: "The term ‘abandon’ means ‘to forsake, to abandon and to give up all rights, title, claim and possession, leaving the same to the other party absolutely.’ Robinson v. Robinson, 88 So.2d 301 (Fla. 1956). The expression ‘abandonment by one tenant in common or a joint tenant will not result in an extinguishment of title as to other tenants in common or joint tenants’ is well settled in Florida. See e.g. , Doe v. Doe, 320 So.2d 73 (Fla. 3d DCA 1975) and cases cited therein. Abandonment is not a method of terminating the interest of a cotenant and does not affect the interests of others in the property. Williams v. Buttery, 169 So.2d 452 (Fla. 2d DCA 1964). Additionally, the abandonment of his or her interest in property must be made clearly and unequivocally and such an intent will not be inferred from doubtful actions and conduct of the cotenant. McGill v. McGill, 56 So.2d 559 (Fla. 1952). See also, McRae v. Marks, 95 So.2d 432 (Fla. 3d DCA 1957); Williams v. Buttery, supra. The estranged status of the appellant plaintiff and his wife, prior to the institution of this litigation, is not a sufficient basis for a finding of abandonment so as to extinguish the interests of the answer defendants based on the record before us." Clyde 338 So.2d 1009 at 1011.
If you are contemplating ending a relationship, you must obtain competent legal advice as to what you may take from the premises and what you may do with property in your possession. Otherwise, you may be creating a liability for yourself.