Page 13 - Boca Club News - June '22

Boca Club News, Page 13
Legal:

Trespass and Encroachments in Florida

By Michael J Posner, Esq., a partner allowed, at their own expense, to trim the tree branches or survey markers, errors in older surveys and plats, a fence
in Ward, Damon, Posner, Pheterson hedge to the property line. They can also saw the roots back can be unintentionally constructed onto another person’s
& Bleau, P.L. a mid-sized real estate to the boundary line. However, removal of the encroaching property. In that case the owner of the land can pursue
and business-oriented law firm tree may result in liability to the adjoining owner as the tree the fence owner to remove and relocate the fence, failing
serving all of South Florida, with adds value and benefit to the adjacent owner. Therefore, which the affected owner can sue for damages or remove
three offices in Palm Beach County. when taking action to remove an encroaching tree or the fence. However, self-help may be unwarranted because
They specialize in real estate law and hedge, care should be given so as to avoid killing the tree in close cases (1-2-foot encroachments) it may turn out
can assist sellers and purchaser with or hedge. that the fence does not encroach, and thus the action of
closing and financing of residential An exception to the foregoing rule may apply to a dead removal will have damaged the fence owner. These cases
and commercial real estate including remote closings. tree. For example, if a live tree with a branch overhanging often become a battle of the survey expert and hinge on
They can be reached at (561) 594-1452 or at mjposner@ the neighbor’s property falls and damages the neighbor’s which survey the judge determines is most accurate.
warddamon.com car, the car owner has no claim against his neighbor.
Robert Frost once opined, in the poem “Mending Wall,” However, if the tree is dead and the same branch falls, the
that “Good fences make good neighbors.” That sentiment tree owner may have liability, as the risk of damage from
can become undone when that fence (or wall, hedge or tree) a dead tree is presumed to be greater. Attention Dog Owners
encroaches upon a neighbor’s property. When this happens, Fence issues also frequently cause issues between
a property dispute between neighbors can blossom into neighbors. Disputes often arise over ownership, It is your responsibility to pick up after
fights, lawsuits, expensive legal fees and, in some cases, maintenance and location. Fences on boundary lines do your dog. It’s the law. Some of you have been
one neighbor moving away rather than continue to fight not create a maintenance burden on the landowner who did negligent in doing so.
over the issue. not erect the fence. However, parties may agree (preferably Please keep our
One big issue is a tree or large hedge that is planted in writing) to share the maintenance of a boundary fence. Boca community beautiful!
on a neighbor’s property but is hanging over onto another Fences may not be installed to spite a neighbor (such
property. In some places outside Florida, the tree owner as to block a water view or to prevent access). A classic
is obligated to maintain the tree and even has the legal example of an alleged spite fence was a Florida case
right to enter another’s property to trim back the tree to where one neighbor would stand in his yard and “watch
the boundary line. Florida subscribes to the old English us the entire time, ” and “ saying that he had a legal right
Common Law standard, which imposes no liability to the to the view over and through our property; he had a legal
owner of the tree or hedge to trim same back from intruding right to tell us where we could plant and not plant.” The
onto adjoining land, even if same is causing damage (such landowner constructed a six-foot fence and the neighbor
as roots ripping up a driveway or sidewalk.) In a 2010 case, sued, claiming the “fence constituted a private nuisance
the court summarized the status of the law as follows: and that it violated their ‘riparian and littoral rights’ by
[A] possessor of land is not liable to persons outside obstructing their view of the water.”
the land for a nuisance resulting from trees and natural The trial court agreed, but the appellate court reversed,
vegetation growing on the land. The adjoining property stating that the water view argument in this case was
owner to such a nuisance, however, is privileged to inapplicable (the water in question was not adjacent to
trim back, at the adjoining owner’s own expense, any their lot and hence no easement for viewing), and that the
encroaching tree roots or branches and other vegetation desire to avoid confrontation with the neighbor did not
which has grown onto his property. support the conclusion that the fence was a nuisance.
There is a remedy available to an owner whose property Installation of fences can also cause issues. Surveying is
is being encroached by a tree or hedge. They are legally more of an art than a science. Due to negligence, misplaced

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