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  1. #1
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    Aug 2019
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    Default Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    My question involves real estate located in the State of: Florida

    An adjoining property owner ("Neighbor") removes a boundary fence without notification or written consent of the other property owner ("Owner"). (The Neighbor bought the property about
    a year ago. And the Owner has owned their property for over 25 years.) The Owner tells the Neighbor that the Owner has ownership rights to the fence and asks to have the fence returned to its original location. The Neighbor refuses. The Owner sends a nicely worded demand letter to the Neighbor requesting that the fence be returned to its original location. The Neighbor has not acted.

    My understanding of the Florida Statute is as follows:

    Boundary Fence Law: If a boundary fence is pre-existing on a property purchased by a new owner, then the new owner has joint ownership rights to the boundary fence with the adjoining property owner. Neither property owner can remove or alter the fence without notification and written permission from the other property owner. Additionally, according to the local code enforcement division, the Neighbor was required to have obtained a permit from the building division before doing anything with respect to the fence.

    Boundary by Acquiescence: A boundary fence by continued occupation and acquiescence in a line other than the true boundary for the period of the statute of limitations, or more than seven years, defaults title of the property underneath the fence and the fence itself to an adjoining property owner. Which would mean that even if the Neighbor, as the new property owner, claims ownership of the fence and the property underneath (through land survey or deed documents), the Owner can claim full ownership of the fence and land underneath pursuant to boundary by acquiescence, since (a) the Owner has maintained and made use of the fence for more than seven years (greater than 25 years); (b) the previous adjoining property owners were absent owners, who therefore neglected the fence; and (c) no evidence exists that the previous property owners protested the fence's existence as an encroachment.

    My question:

    Can the Owner claim full ownership of the fence and property underneath pursuant to the principal of boundary by acquiescence, or are they bound by the boundary fence law, and share joint ownership of the fence?

    In either case, the Neighbor would be required by law to return the fence to its original location or pay for the installation of a replacement fence.

    Thanks.

  2. #2
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Quote Quoting argopo
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    My question:

    Can the Owner claim full ownership of the fence and property underneath pursuant to the principal of boundary by acquiescence, or are they bound by the boundary fence law, and share joint ownership of the fence?

    In either case, the Neighbor would be required by law to return the fence to its original location or pay for the installation of a replacement fence.

    Thanks.
    Owner could spend the money to litigate this matter in court, with no assurance that he'd win (at least with just the facts here). Or, if he wants a fence, he could put one up on his side of the property line. Doing the latter may ultimately prove the cheaper option.

  3. #3
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Do you have a survey that shows the location of the fence in regards to the property line? For there to be a boundary fence, it must be on the boundary line or so close as it be accespted to be on the boundary line. (Many fences wander and waiver a bit from the precise boundary line).

    if the fence wasn’t on the boundary line, it isn’t a boundary fence and belongs in whole to whomever’s property it lies upon.

    If it was a true boundary fence, then the laws regarding boundary fences apply.

    Just because a fence may not be on a boundary line, it doesn’t mean the owners of he fence have acquiesced to the property line being where the fence it. Many people set a fence into their property several inches or even feet to ensure the remain the owner or said fence. Acquiescence requires an acceptance of a given line as the boundary line. Without knowing the facts of the mattter it is impossible to guess as to whether there may be a valid claim by anybody to title by acquiescence involved.

  4. #4
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Owner has land survey from the original purchase of property which shows the property line, and the fence is on the boundary line. For the past 25 years or more, the fence has been in use as a boundary fence.

    It is unclear whether the Neighbor has a land survey. In the demand letter sent to the Neighbor, Owner requested a copy of their land survey.

  5. #5
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Owner has land survey? You don’t know if neighbor has a survey?


    Who are you in this matter?


    Now youve said this, your statement regarding acquiescence of the boundary makes no sense since you say the fence was on the actual boundary. It especially makes your statement that neighbor has made no objections regarding the encroaching fence. Again, if it was on the property line, it encroached onto neither property. Your statement makes absolutely no sense.

  6. #6
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Correct, the Owner who has owned the property for over 25 years has a land survey from the time of the original purchase of the property.

    We don't know if the current (new) adjoining property owner, referred to as Neighbor, obtained or received a land survey of the adjoining property when they purchased it. Which was a little more than a year ago. We did request a copy of the land survey for their property in the demand letter.

    The previous adjoining property owners were part-time residents, who had owned the property for a very long time. Probably same amount of time as the Owner.

    I think you may have misunderstood my statements about the two different owners of the adjoining property. The problem is with the new neighbors, who recently purchased the property. The previous owners are now deceased and their family members sold the property to the current Neighbors.

    I am a family member of the Owner.

  7. #7
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    I didn’t misunderstand anything. I understand your statement regarding the ownership of the neighboring land.

    Your statement regarding the encroachment and an alteration of the property line still makes no sense since the survey showed the fence to be on the boundary line. There would be no encroachment issues or concern with a property line acquiesced to that is different than the platted lines. What your statement does suggest is that the fence is actually (or was) on the neighbors property. Without that the encroachment and acquiescence comments make no sense.


    From what you have stated, it would appear your family member would be able to act bases on the boundary fence laws. I have no idea how much and what kind of fence is involved but you can usually buy a lot of fence for what it would cost to litigate this matter.

  8. #8
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    Aug 2019
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    Yep, the consensus is to make use of the Boundary Fence Law in this particular case.

    With respect to litigation, based on what I have researched, the only avenue seems to be to file a claim in small claims court and try to come to a resolution through pretrial mediation.

  9. #9
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    Default Re: Neighbor Removes Boundary Fence Without Consent of Adjoining Property Owner

    . Florida small claims limits are $5000. I do not see where they have the power of injunctive relief where they could order the fence reinstalled. That would mean only a money judgment is possible. And were talking half the value of a fence that was at least 25 years old. I can’t see a lot of value in such a fence.

    And there isn't necessarily going to be a Pretrial mediation

    and the defendant can attempt to move the matter to a higher court where things get expensive fast


    and I have no idea what the defendant might present as a defense so there is no way to even address that. .


    I cant seem to find any statute supporting your contention as to joint maintenance or actions on the fence. If it isn’t in statute you would have to present adequate case law to support your case

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