Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 980 N. Federal Highway, Suite 440, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is Board Certified by the Florida Bar in Real Estate Law and Condominium and Planned Development Law.

SIX INCH WALL FOOTER ENCROACHMENT DOES NOT RENDER TITLE UNMARKETABLE, OR DOES IT?

If a building or improvement which is  located on one lot is partially built upon  the lot which is the subject of the sale (i.e., an encroachment), depending upon the terms of the contract for sale and purchase,  the same may be  considered a title defect rendering title of the lot which is for sale unmarketable. That makes sense; only the owner of a lot should be permitted to build an improvement on it, unless the lot owner has granted another person permission to do so (e.g., by easement, covenant, or license).
What if an adjoining lot owner  installs a boundary wall on the adjoining lot owner’s lot, but the subterranean footers of the wall extend 6 inches into and underneath the appurtenant lot? Would the appurtenant lot owner have a cause of action against the adjoining lot owner to compel the adjoining lot owner to remove the encroaching subterranean footers and for damages? Apparently not, at least according to the Florida Fifth District Court of Appeal. In Williams v. River Bend of Cocoa Beach, 44 Fla. Weekly D2377 (Fla. 5th DCA 09/20/19), the Court upheld the trial court’s ruling that the 6 inch subterranean footer encroachment was “de minimus and did not seriously interfere with the use and enjoyment of the land [appurtenant lot],” nor did it render title of the appurtenant lot unmarketable.
This ruling seems contrary to established law which states that  ownership of land is unique and any unpermitted interference with the owner’s rights to or interest in the land is presumed to cause irreparable damage. Why should an adjoining lot owner be able to use the other lot without that lot owner’s permission? What if the other lot owner wanted to construct a boundary wall on her side of the boundary line and she  wanted her subterranean wall footers to extend into and under the adjoining lot? That would not be possible if the adjoining lot owner’s boundary wall footers extended  6 inches into her lot; she would be prevented from installing her wall any closer than within 6 inches of her boundary line because the adjoining lot owner’s footers would already be there. If the adjoining lot owner is permitted to encroach by this court ruling, will the adjoining lot owner eventually acquire title to the 6 inch strips of land by adverse possession or prescriptive easement?
The Fifth District cited to a 1953 Florida Supreme Court case to support its ruling. However, in Loeffler v. Roe, 69 So.2d 331(Fla. 1931), the encroachment involved a roof overhang of a building which was located on private land but which hung over public land (the roof overhang encroached into the air rights over a public street and publicly owned sidewalk). The Municipality had no objection to the air encroachment, which I would argue, is a material distinguishing fact from the facts in the Williams case. In Williams, the encroachment was underneath another privately owned lot not public land, and the owner of the privately owned lot objected to the encroachment.
Interestingly, the Fifth District also affirmed the trial court’s ruling that if the adjoining lot owner’s wall “fell into a state of disrepair in the future that it must be removed”,  then the encroaching footer must be removed, and any new wall could not encroach on or under the appurtenant lot. Rhetorical Question: Why can’t the adjoining lot  owner reinstall the encroaching  subterranean wall footer 6 inches under the appurtenant lot again if, as the trial court ruled and the Fifth District affirmed, the encroachment is de minimus and does not seriously interfere with the appurtenant lot owner’s property rights, or render the appurtenant lot  owner’s title unmarketable?

As of November 20, 2019,  a motion for rehearing had been denied and an appeal had been filed with the Florida Supreme Court.