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.


The standard real estate contract provides that if a building or improvement, located on a lot which adjoins the lot which is for sale, is partially located on the lot which is for sale (i.e., an encroachment upon the lot which is for sale), the same will be considered a title defect rendering title of the lot which is for sale unmarketable (and the adjoining lot’s title is also unmarketable due to the “excroachment”). That makes sense; your next door neighbor should not have any right to construct an improvement on your lot, except with your permission (e.g., by easement, license, or otherwise).
What if your neighbor installs a boundary wall on the neighbor’s property, but the subterranean footers of the wall extend 6 inches into and underneath your lot? Would you have a cause of action against your neighbor to compel your neighbor 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,” nor did it render title 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 your neighbor be able to use your property without your permission? What if you wanted to construct a boundary wall on your side of the boundary line and you wanted your subterranean wall footers to extend to your own boundary line? That would not be possible if the adjoining neighbor’s boundary wall footers extended  6 inches into your lot; you would be prevented from installing your wall any closer than 6 inches from your boundary line (unless your boundary wall footers could be installed above or below the neighbor’s footers). If your neighbor is permitted to encroach, will your neighbor 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 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 adjoining lot. Query: Why can’t the neighboring wall owner reinstall the encroaching  subterranean wall footer 6 inches under the adjoining 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 adjoining owner’s property rights, nor render the adjoining 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.