McNair Arrest and Related Probable Cause Affidavit Page 2and that the adverse possessor has a full year to file notice of adverse possession. Thus, even withoutnotice, adverse possession becomes a civil matter for the courts, not a criminal matter for the Sheriff orother law enforcers, to decide.2.
People who abandon realty commonly leave “property” better known as “junk” lying aroundinside and outside the dwelling. An adverse possessor must remove and dispose of any such junk inorder to make the realty inhabitable. Thus it does not constitute a crime to remove such junk.3.
Joel McNair admitted in his interview with Sheriff's deputies that he operated a membershipenterprise for which members paid a membership fee, monthly dues, maintenance, and taxes, andreceived a previously abandoned house in some phase of foreclosure. He had numerous members, andso he kept records of significant interactions with them. All members knew McNair had taken therealty under adverse possession and they did not pay rent for inhabiting it.4.
McNair had such adverse possession interests in the community that he posed no flight risk 5.
The identity of the rightful owner in a foreclosure becomes uncertain because of through cloudson the title by the forecloser.6.
The rightful owner had abandoned the property.
Regarding the Affidavit
Page 2, Narrative Paragraph 2
This and other references in the document mention receiving information from the occupants of thedwelling 4406 Eleuthera Ct. However, the detective fails to identify them by name. Why? I considerthis data crucial to an affidavit of probable cause because without it an independent investigator cannotcorroborate the allegations of the affidavit. This paragraph leads one to the conclusion that the rightfulowner Nicholas Nalefski had abandoned the realty, and that someone had taken adverse possession of itand moved the occupants into it, but the investigator failed to say this. The failure could lead anunwary judge to the wrong conclusion that the occupants trespassed and that the adverse possessorcommitted a crime of fraud or grand theft. Had the investigator properly indicated the ABANDONEDand rightfully ADVERSELY POSSESSED nature of the realty, the judge probably would not havesigned the arrest warrant.
Page 2. Narrative Paragraph 3
This reference shows WHY the rightful owner abandoned the realty, that the mortgagor had initiatedforeclosure proceedings against which the rightful owner did had intended no defense. Theinvestigator knew that the foreclosure brings rightful ownership into serious legal dispute. Theinvestigator learned that the county property appraiser showed Nicholas Nalefski as the realty's owner.If the house had belonged to the son, what right did the father have to complain of trespass? And howcould occupancy by Karel and Magnuson pose a threat or right deprivation to Nicholas who hadabandoned the realty to foreclosure?
Page 2. Narrative Paragraph 4
This reference states at its end: