Winter Park Home, Volume 7/Issue 2, 2009John J. owns a lot in a platted subdivision, and called me concerning his neighbor’s recently constructed fence. The fence encroaches the length of the Easterly side of John’s property by approximately one foot. He overheard his neighbor joking to some friends that he would eventually own this strip by adverse possession. John asked me if his neighbor was right – that he would lose ownership of this one-foot strip of land over time if he did not take any affirmative steps to challenge his neighbor.
I first asked whether he or any of his predecessors in title ever gave his neighbor permission, either verbally or in writing, to build a fence on his property. John gave me a copy of his title insurance policy which confirmed, as of the date he purchased his property, that there were no recorded grants of easements in favor of his neighbor. He also confirmed that he has never given his neighbor permission to construct a fence on any portion of his land. I then explained that Florida law requires any transfer of an interest in real property, including a grant of an easement to construct a fence, be in writing and recorded in the public records in order to be enforceable. Additionally I explained that even if he gave verbal permission to his neighbor, that permission could be subsequently withdrawn.
He will not lose his property to his neighbor by adverse possession. Adverse possession claims fall into two categories – those “under color of title,” and those “without color of title.” In each category the person claiming adverse possession must physically occupy the property, to the exclusion of all others, for a minimum period of seven years. This possession must be open and notorious, without the consent of the record title owner. The adverse possessor will typically construct a wall or fence to establish the boundaries.
“Color of title” means that the adverse party bases his/her claim upon a recorded document in the claimant’s chain of title. A title search of John’s property revealed that there are no recorded instruments to support a claim under this category. The second option – “without color of title” – does not require proof of interest based upon a recorded document, but does include additional requirements, including proof that the “adverse claimant” has paid taxes on the property for seven consecutive years. The claimant must file a return with the Property Appraiser within one year of taking possession, and pay taxes on the land for seven consecutive years. Since the property appraiser’s records reflect that John is the only person paying taxes on his land, there is no valid basis for his neighbor to claim adverse possession “without color of title” over a portion of John’s property.
John then asked whether his neighbor could establish an easement right to use this same strip of land. The answer is a qualified yes, and only over a twenty year period - his neighbor would also have to judicially establish that his possession is actual, continuous, and uninterrupted for twenty consecutive years, and that possession is without the owner’s express or implied permission. The right to use the land must also be exercised under some claim of right, inconsistent with the rights of the owner.
Florida courts have consistently ruled in favor of the fee property owner and rarely in favor of the claimant in these matters, and have held that the use of another’s land is presumed to be with the owner’s permission. The burden of proof is on the claimant to prove that such use or possession is adverse to the owner. The owner does not have to show that the claimant’s use was permissive. The claimant is given the burden of presenting competent evidence to rebut the presumption of permissive use.
I advised John that he has the right to ask his neighbor to move the fence to the property line, and that if his neighbor refuses he can move the fence himself (since it is on his property). John admits he is happy with the quality of the fence, has a good rapport with his neighbor, and only wanted to know his legal rights. He also told me that he will tell his neighbor that for now he is OK with the location of the fence, and that he will ask that it be moved back to the property line the next time it needs to be repaired or replaced. John also assured me that if his neighbor does not comply with his directions that he will contact me again to address the matter more formally.
As true as the expression “good fences make good neighbors” may be, fence encroachments can create significant friction between neighbors. Relocation of an encroaching fence, or a properly drawn fence line agreement can settle issues that may otherwise be unresolved for many years. In these situations, each neighbor should retain their own legal counsel to address the issues and available solutions.
“Color of title” means that the adverse party bases his/her claim upon a recorded document in the claimant’s chain of title. A title search of John’s property revealed that there are no recorded instruments to support a claim under this category. The second option – “without color of title” – does not require proof of interest based upon a recorded document, but does include additional requirements, including proof that the “adverse claimant” has paid taxes on the property for seven consecutive years. The claimant must file a return with the Property Appraiser within one year of taking possession, and pay taxes on the land for seven consecutive years. Since the property appraiser’s records reflect that John is the only person paying taxes on his land, there is no valid basis for his neighbor to claim adverse possession “without color of title” over a portion of John’s property.
John then asked whether his neighbor could establish an easement right to use this same strip of land. The answer is a qualified yes, and only over a twenty year period - his neighbor would also have to judicially establish that his possession is actual, continuous, and uninterrupted for twenty consecutive years, and that possession is without the owner’s express or implied permission. The right to use the land must also be exercised under some claim of right, inconsistent with the rights of the owner.
Florida courts have consistently ruled in favor of the fee property owner and rarely in favor of the claimant in these matters, and have held that the use of another’s land is presumed to be with the owner’s permission. The burden of proof is on the claimant to prove that such use or possession is adverse to the owner. The owner does not have to show that the claimant’s use was permissive. The claimant is given the burden of presenting competent evidence to rebut the presumption of permissive use.
I advised John that he has the right to ask his neighbor to move the fence to the property line, and that if his neighbor refuses he can move the fence himself (since it is on his property). John admits he is happy with the quality of the fence, has a good rapport with his neighbor, and only wanted to know his legal rights. He also told me that he will tell his neighbor that for now he is OK with the location of the fence, and that he will ask that it be moved back to the property line the next time it needs to be repaired or replaced. John also assured me that if his neighbor does not comply with his directions that he will contact me again to address the matter more formally.
As true as the expression “good fences make good neighbors” may be, fence encroachments can create significant friction between neighbors. Relocation of an encroaching fence, or a properly drawn fence line agreement can settle issues that may otherwise be unresolved for many years. In these situations, each neighbor should retain their own legal counsel to address the issues and available solutions.
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Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.
Orlando Sentinel, November 17, 2008