If a building or improvement which is located on one lot is partially built on an adjoining lot (i.e., an encroachment onto the adjoining lot and an excroachment of the building on the lot itself), the same would usually be considered a title defect, with respect to what the survey would show, thereby rendering title of both lots unmarketable. That makes sense; only the owner of a lot should be permitted to build an improvement on it, unless the lot owner has granted another person permission to do so (e.g., by easement, covenant, or license).
What if a lot owner installs a boundary wall on the lot owner’s lot, but the subterranean footers of the wall extend 6 inches into and underneath the adjoining lot? Would the adjoining lot owner have a cause of action against the lot owner who installed the footers to compel the lot owner to remove the encroaching subterranean footers and for damages? Apparently not, at least according to the Florida Fifth District Court of Appeal. In Williams v. River Bend of Cocoa Beach, 44 Fla. Weekly D2377 (Fla. 5th DCA 09/20/19), the Court upheld the trial court’s ruling that the 6 inch subterranean footer encroachment was “de minimus and did not seriously interfere with the use and enjoyment of the land [adjoining lot],” nor did it render title of the adjoining lot unmarketable.
This ruling seems contrary to established law which states that ownership of land is unique and any unpermitted interference with the owner’s rights to or interest in the land is presumed to cause irreparable damage. Why should a lot owner be able to use the adjoining lot without the adjoining lot owner’s permission? What if the adjoining lot owner wanted to construct a boundary wall on her side of the boundary line and she wanted her subterranean wall footers to extend into and under the other lot? That would not be possible if the other lot owner’s boundary wall footers extended 6 inches into the adjoining lot; she would be prevented from installing her wall any closer than within 6 inches of her boundary line because the other lot owner’s footers would already be there. If a lot owner is permitted to encroach onto the adjoining lot, purportedly as authorized by this court ruling, will the lot owner eventually acquire title to the 6 inch strips of land on the adjoining lot by adverse possession or prescriptive easement?
The Fifth District cited to a 1953 Florida Supreme Court case to support its ruling. However, in Loeffler v. Roe, 69 So.2d 331(Fla. 1953), the encroachment involved a roof overhang of a building which was located on private land but which hung over public land (the roof overhang encroached into the air rights over a public street and publicly owned sidewalk). The municipality had no objection to the air encroachment, which I would argue, is a material distinguishing fact from the facts in the Williams case. In Williams, the encroachment was underneath another privately owned lot, not public land, and the owner of the privately owned lot objected to the encroachment.
Interestingly, the Fifth District also affirmed the trial court’s ruling that if the lot owner’s wall “fell into a state of disrepair in the future that it must be removed”, then the encroaching footer must be removed from the adjoining lot, and any new wall could not encroach on or under the adjoining lot.Rhetorical question: Why can’t the lot owner reinstall the encroaching subterranean wall footer 6 inches under the adjoining lot again if, as the trial court ruled and the Fifth District affirmed, the encroachment is de minimus and does not seriously interfere with the adjoining lot owner’s property rights, or render the adjoining lot owner’s title unmarketable? Furthermore, what must or should the lot owner who caused the encroachment disclose to a prospective purchaser or mortgagee of the lot about the excroachment of the footers under the adjoining lot?
As of March 10, 2020, a motion for rehearing had been denied and an appeal is pending with the Florida Supreme Court.
