By: Clark, Campbell, Lancaster & Munson, P.A.
Q: A few years ago my neighbor put up a fence, and I think it encroaches onto my property by a few inches. Does my neighbor have a claim for adverse possession for part of my land?
A: There is an old saying that possession is 9/10ths of the law, but oh what a difference 1/10th can make. Before proceeding you should obtain an updated survey of your property by a licensed surveyor to confirm your neighbor’s fence is indeed encroaching onto your property.
In order for your neighbor to claim adverse possession of part of your land, certain requirements must be satisfied. Adverse possession may be claimed with color of title, such as pursuant to a defective deed, or without color of title, such as with a substantial enclosure like a fence. Moreover, the person claiming adverse possession bears the burden of proof, and adverse possession must be proven by clear and convincing evidence.
For your neighbor to claim adverse possession, your neighbor’s possession of your property must be open, notorious, exclusive, and continuous. What constitutes open and notorious is fact intensive. The use must be with the owner’s knowledge or so open, notorious, and visible that knowledge of the use by the neighbor is imputed to the owner. For example, your neighbor put up a fence, started using part of your land for a garden, and tends to that garden every day.
To have a claim for adverse possession, the possession must be exclusive such that your neighbor cannot possess the property with you or the public. However, two or more people may claim title by adverse possession of another’s property and, if successful, would take title as tenants in common.
Your neighbor would also have to show that your neighbor’s possession has been continuous, consecutive, and unbroken for a period of 7 years. Any break in the 7-year period is fatal to the adverse possession claim. However, in Florida, under the doctrine of tacking, an adverse possessor may add his or her period of possession to that of a prior adverse possessor to establish continuous possession for the 7-year period. Therefore, if you had a previous neighbor who initiated the adverse possession, your current neighbor may benefit from the earlier period of adverse possession as long as the periods are consecutive, continuous, and unbroken.
However, even if your neighbor satisfies the requirements above, an adverse possessor must also pay all outstanding taxes on the portion of the property being adversely possessed for 7 years and notify the property appraiser of the adverse possession pursuant to statute, and this is usually that 1/10th difference where an adverse possession claim fails. Once the property appraiser receives notice of adverse possession, the property appraiser is then required by law to notify the property owner of record that the property is subject to an adverse possession claim.
Therefore, if you’re concerned your neighbor might have a claim for adverse possession, you may want to be a good neighbor and kindly ask your neighbor to move his fence if your survey indicates it encroaches onto your property. If your neighbor still refuses to move his fence, then you should consider contacting an attorney and taking legal action if you suspect your neighbor may have a claim for adverse possession.