Can I Prevent a Neighbor from Disputing a Land Survey?

Full question:

My neighbor continues to encroach upon my property even after a survey was completed, for which she paid. I live in a new construction neighborhood. All homes were built within one year of each other. My house and the houses on either side have been through several surveys for various reasons (purchase, pools, fences, and finally foreclosure). There has never been any conflict regarding the properly line between my house and the house next door. Ten months ago the house next door was purchased out of foreclosure. The new owner almost immediately began encroaching on my property with shrubbery and landscape border. I have talked to her several times and she continued to claim she was told her property line was where she thought it was. I asked her to refer to her survey but she refused. Two months ago she had a fence installed. The fence company had yet another survey performed. The survey line between our homes aligned with all of the survey information I have for my home, and previous surveys I had seen done on that property for the pool and foreclosure sale. However, recently she has begun to encroach upon my land again in areas where the fence was not constructed. She is planting shrubs and placing landscape borders over the property line onto my land. In some places it is only several inches, in other it is over a foot. We have talked and she is now making the claim that I moved the survey markers and it is her land. The marker nailed into the sidewalk is still in place and she is clearly beyond that point. This is malicious and is in addition to other nuisance behavior she has performed towards me and my home. I have not moved the survey line as when it was done I was very pleased in hopes it would put an end to her prior behavior. Now that she has had a survey performed and is fraudulently claiming it has been altered by me, what legal recourse to I have to first get the encroachments removed and second be able to have enforced should she continue the behavior after any finding in my favor?

• Category: Real Property
• Subcategory: Encroachment
• Date: 04/07/2025
• State: Florida

Answer:

In the case of an encroachment, a plaintiff may be awarded the fair value of the property. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. It will be a matter of subjective determination for the court whether the accusations are malicious or there is a good faith question over the accuracy of the survey. Injunctive relief preventing moving of markers, etc. may be requested, and if violated, a petition for contempt may be filed.

An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.

The laws of adverse possession allow a person to obtain title to land by simply using the land for a period of time specified by state law. For example, a neighboring property owner may have built a fence, placing it several feet inward on his property. If a person knows that a fence is on his land, but do not dispute its placement, title to that portion of the property could be lost. The intruder's use of the land must be in the open for everyone to see. Title to land is acquired by adverse possession as a result of the lapse of the statute of limitations for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.

In order that adverse possession ripen into legal title, non-permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough.

While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in bankruptcy.

It may be possible to alert the neighbor to the encroachment with a notice or enter into an agreement for an easement.