Determining Ownership Within Boundary Disputes Part I: An Overview of Claims Available and Analysis of Elements Required to Prove Those Claims

A disagreement arises between two neighbors as to the boundary line of their parcels, now what?  This blog will explore the claims that may be raised in a boundary dispute.  Preliminarily, before exploring the different claims that may be asserted to resolve boundary disputes, practitioners must deal with the threshold issues of private ownership, third-party causation, and insurance coverage.  First, the practitioner must determine whether the disputed property is actually subject to private ownership.  Lee v. Williams, 711 So. 2d 57 (Fla. 5th DCA 1998).  If so, the issue moves forward with regard to which claim is best fit for the factual circumstances.  If not, the dispute may automatically end or the course of the dispute takes a different route than a private ownership claim.  A secondary threshold determination is whether a third party is responsible for the boundary dispute.  This issue may arise when a seller makes a misrepresentation to a buyer of property regarding the boundary lines of the property such that the buyer reasonably relied on said representation.  The final threshold issue is the application of insurance and whether the dispute is covered under the title insurance.  While these three preliminary issues are not exhaustive of all threshold issues in a boundary dispute claim, these are the main issues to be aware of and to look for before delving into litigation.

One of the most common claims in a boundary dispute is adverse possession.  Sections 95.16 and 95.18, Florida Statutes, govern the requirements for establishing adverse possession with color of title and without color of title.  When a claimant establishes color of title, the claimant must also prove that the property has been possessed continuously for seven years.  Fla. Stat. § 95.16.  Color of title is defined as a written instrument, which may include a tax deed, trust deed, or a final judgment.  Possession may be proven through any of the following acts:  (1) cultivating or improving the property; (2) protecting the property with an enclosure; or (3) using the property for the supply of fuel or fencing timber “for the purpose of husbandry or the ordinary use of the occupant.  Fla. Stat. § 95.16(2).

Without color of title, Section 95.18, Florida Statutes, establishes the elements for adverse possession as continuous and adverse occupancy of the property for seven years, with no written instrument showing entitlement to ownership or interest, and the person occupying the property made a return for taxes within a year after taking possession and paid all subsequent taxes thereafter.  Possessory acts sufficient under adverse possession without color of title include protecting the property with a substantial enclosure and cultivating or improving the property.

The commonalities between adverse possession with and without color of title are the requirements that possession be open, exclusive, and notorious.  Possession is open and notorious when the conduct of the possessor is such that other parties would notice that the possessor was using the property as his or her own.  The element of exclusivity requires that the party or parties who initially took possession, remain in possession for the seven years; essentially, it must be the same parties in possession for the entire length of the statutory period.

The second resolution to a boundary dispute may occur through a boundary agreement or boundary acquiescence.  While these are not the same, a boundary agreement and boundary acquiescence are related as the elements differ by only one additional element for boundary acquiescence.  While a plan of action for an agreement or acquiescence is not per se a claim, as both may be resolved outside of court, both are an effective and useful mechanism to resolve a boundary dispute.  With that being said, there is still the chance that a party could file a declaratory action to determine who is entitled to what land based on a purported boundary.  A boundary agreement must show the following: (1) dispute as to the true boundary; (2) agreement that a certain line will be treated as the true boundary line; and (3) successor titleholders honor the established line as the permanent boundary.  Note that there is not a statutorily prescribed time for possession in a boundary agreement, but acquiescence has the additional element of existence of the boundary line for a period exceeding the statutory period of seven years.

The third claim for resolving a boundary dispute is a quiet title action.  A claim for quiet title seeks to remove any cloud of title upon a property so that the claimant may be free from any future hostile claims upon the property.  The very goal of quiet title is to change the record title holder to the property.  If the party in possession is someone other than the claimant, claimant will also include an action for ejectment to remove the person in possession.  A claim for quiet title must allege facts of the claimant’s ownership, title, or interest, his or her actual or constructive possession or entitlement to possession, and the existence and invalidity of the defendant’s interest, claim, or lien.

Fourth, an owner may raise the issue of the presence or lack thereof of an easement.  An easement is a privilege without profit that implies an interest in land.   Easements may be created by express grant, by implication, by prescription, or by operation of law.  An easement by express grant requires a showing of some grant in a written document wherein the owner prescribed the use of the easement by another individual.  Easement by implication typically arises in situations where there was a preexisting use of the easement prior to separating the parcels and that there was intent that the easement would continue to be used upon the separation of the parcels.  Easement by prescription is essentially an easement by way of adverse possession because there must have been a continuous use, without permission, that was open and notorious.  An easement is created by operation of law if there is no accessible right-of-way to one’s property, such that the easement is necessary to provide access.

Finally, a boundary dispute may be resolved by a homeowner raising a claim disputing eminent domain or by the state raising a claim of eminent domain with regard to their entitlement to the land.  The state of Florida, by virtue of its sovereign immunity, has the vested authority to take property through eminent domain.  Eminent domain consists of three elements: (1) the taking is for “public purpose” (as defined in Article X, Section 6 of the Florida Constitution); (2) the property is “reasonably necessary” for the public purpose (as determined in Section 73.021(1), Florida Statutes); and (3) the landowner was fully compensated.  Depending on the claims, Section 73.021(3), Florida Statutes, contemplates damages for the value of the property sought to be appropriated (when the entire property is taken), severance and business damages (where less than the entire property is to be appropriated), and relocation damages (when the owner is a mobile homeowner).

This blog does not contain an exhaustive list of all potential claims for boundary disputes but it covers some of the most common claims.   The second blog post in the series “Determining Ownership Within Boundary Disputes” will discuss the information used to prove proper ownership.