Being Sued over Boundary Line

[Laurellynne]

What is the name of your state? FL

I wrote last year with dispute and hoped the neighbor would settle by returning our 10ft of land, but he is suing claiming 1. Adverse Possess. under color of title 2. Boundary by Acquiesence

He plans on using the updated survey we paid for (he requested) to fill the requirement "Under Color of Title". How does our survey fulfill that requirement? The tax assersor plat shows the parcel correctly and shows the fence off 10 ft. north and south of his parcel. He never paid taxes on our 10ft, but made improvements (driveway, sheds, etc. without permits from the city or county) thru the years. We purchased the property in 2003, having tried to correct this ever since.

The 10 ft came about by our predecessor purchasing it at a tax sale by the county in 1980's. This is the reason the fence was never moved, as it enclosed the original 140 ft. The additional 10ft is contiguous with the 140ft. Obviously he erected a fence and tied onto our original fence without a survey.

He's suing for $15,000 damages, also. We moved rusty sheds (pictures before and after) onto his property and cut a 1ft by 85ft swath down the concrete driveway to erect our new fence (old fence removed after damage by hurricance). City gave us a permit and is aware of our situation, said no such things as squatters rights, but hey they're city employees not judges or attornies.

The 10ft neighbor was missing lies to his north and Mr. L. agreed to give him the 10ft back and as of October of 2007 a letter from our attorney stated that the matter will be settled. Well the neighbor is suing both Mr. L and us, wanting our property, too!

We're humble mushrooms, they are real estate investors. Mr. L. use to own our land also (back in the 80's and 90's when his Dad bought the extra 10ft to make our lot housebuildable versus just mobile home lot). Title insurance will not help us since we did not have an updated survey at purchase time.

We've sent more money to our attorney as the suit was filed about a month ago.

Here's my questions. 1. Odds on winning or losing or a draw?
2. Judgement Leins, if we lose. We only own the land in FLA (it's mortgaged), live in another state. What can he file against? I looked up FL lein laws, but unclear what happens when you live in another state.

Our deed shows 140ft by 85ft __AND__ 10ft by 85ft. There are two separate parcels, one for the original 140 the other for the additional 10ft. Could his lein be limited to the 10ft parcel? Frankly, we don't have any vehicles not financed to the hilt, or any savings, either. Can he garnish wages (hubby employed, I'm disabled by Multiple Sclerosis, but I am not on the deed- our adult children are JT/RS, one lives in FLA, other here in NC).

Thanks and I'll let you know if we win or lose.
Laurel
P.S. We've tried to settle this numerous times with him, but he wants money and the land!
He profits by becoming a house buildable lot versus mobile home lot, if he prevails.

 

[FarmerJ]

Laurel unfortunately people sue others often on weak cases hoping to win , the one key thing being you have had the property for 5 yrs now so your purchasing it likely reset the time clock on any claim he could make and his never paying taxes on the land. Try to do yoru best to relax , My opinion is that there is a very good chance he will not win any claim against you BUT that is my opinion. Now about his lack of permits , by chance have you learned from your city /county zoning desk wich of the things he did to that strip required a permit ? Not sure but it may help you to have with you in court copys of the ords he violated. I think the nieghbor will look foolish to the court when the court hears that when it was learned that Mr L had no problem with learning that the nieghbors lot line was 10 ft more his way. It appears doubtful that the nieghbor ever considered having his own survey before doing any improvements, its too bad , any way do your best to enjoy the summer , I doubt your other assets are at risk , its not like the nieghbor broke a ankle on your land.

 

[justalayman]

here is the specific statute regarding adverse posession under color of title:

95.16 Real property actions; adverse possession under color of title.--

(1) When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(a) When it has been usually cultivated or improved.

(b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed.

(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.

(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.

here is a link to the other germane sections:

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0095/titl0095.htm

here is an excerpt from a site concerning boundary by acquiescence (http://edis.ifas.ufl.edu/FE107):

Example 2: Boundary by Acquiescence. Two important elements of this are:


A dispute or uncertainty from which it can be implied that both parties are in doubt as to the true boundary line (meaning both landowners lack actual knowledge of the true boundary).

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 (see King v. Carmen, 237 So. 2d 26, at 28 [Fla. 1st DCA 1970]; McDonald v. Givens, 509 So. 2d 992 [Fla.1st DCA 1987]; 1 Fla. Jur. 2d Adjoining Landowners sections 47 and 48; Fla. Stat. section 95.12).

In the absence of direct evidence of a dispute, courts have held that the placement and duration of the fence itself may be enough to establish sufficient doubt or uncertainty. Boundary by agreement and boundary by acquiescence both involve a disputed boundary line (note that if existence of a boundary line in a particular location is without dispute, then the person who is encroaching upon the land cannot claim possession of the land), but boundary by acquiescence requires that the land must be encroached upon for at least seven years. In other words, action brought to recover property after seven years of encroachment will probably be denied.
In the case of McDonald v. Givens, the owner before McDonald (M) had erected a fence, which remained on the property for at least fifty years. Since the fence was erected, M and her predecessors, along with other individuals residing in the area, considered the fence to be the boundary between the two properties. Thirteen years after M had obtained title to her property, Givens (G) purchased property that shared a common boundary with M's property. G's survey disclosed that M's fence was encroaching upon G's property as described in their deeds and the true boundary line was eastward of the fence. The court found that while no direct evidence was available to show uncertainty over the boundary line at the time of the fence's erection, without any other explanation for its specific location, the placement and duration of the fence itself is sufficient evidence to show doubt and establish for boundary by acquiescence (McDonald v. Osteen, 429 So. 2d 407, 409 [Fla. 1st DCA 1983]). Furthermore, the court stated that while G protested the current fence, no evidence existed that any of the owners before G protested the fence's existence as an encroachment. The fence was maintained for 30 years, without dispute, before G gained title to the property. This surpassed the necessary seven years needed under the statute of limitations. The court found a boundary by acquiescence, fulfilled by the two elements, and G's protest was denied.

No promises but I would see neither of these possibilities as possibilities for your neighbor. The courts can be fickle though so do not count on my word for anything.