Boundary by Acquiescence
- 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
Examples include
King and
McDonald (
King v. Carmen, 237 So.2d 26, 28 [Fla. 1st DCA 1970];
McDonald v. Givens, 509 So.2d 993 [Fla. 1st DCA 1987]; 1 Florida Jurisprudence 2d
Adjoining Landowners section 51 [2014]; Florida Statutes section 95.12 [2014]).
In
the absence of direct evidence of a dispute, all five district courts
in Florida and the Florida Supreme Court agree that mere consruction of a
fence does not suffice to establish the element of uncertainty in a
boundary dispute case (
Van Meier v. Kelsey, 91 So.2d 32 [Fla.
1956]). 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, 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 f50 years (
McDonald v. Givens,
509 So.2d 993). 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 (
Id.). Thirteen
years after M had obtained title to her property, Givens (G) purchased
property that shared a common boundary with M's property (
Id.).
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 (
Id.).
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 (Id.) (McDonald v. O'Steen,
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 (
Id.).
The fence was maintained for 30 years, without dispute, before G gained title to the property (Id.). This surpassed the necessary seven years needed under the statute of limitations (Id.). The court found a boundary by acquiescence, fulfilled by the two elements, and G's protest was denied (Id. 993–994).
Source:
http://edis.ifas.ufl.edu/fe107
