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Subject: HOA boundary lines
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SamJ6
(Wisconsin )

Posts:23


04/19/2021 9:31 AM  
My house is on a stormwater pond that is owned by the association. My HOA recently surveyed that pond and found that my hedge is off-line. I've planted that hedge 10 years ago. I also have satellite pictures of my house from 10 years ago and the hedge line was very defined. Nothing in their governing documents addresses encroachments. In the state of Florida, can this be considered as the boundary by acquiescence since they haven't complained about it for 10 years now?
AugustinD


Posts:1695


04/19/2021 9:39 AM  
Posted By SamJ6 on 04/19/2021 9:31 AM
My house is on a stormwater pond that is owned by the association. My HOA recently surveyed that pond and found that my hedge is off-line. I've planted that hedge 10 years ago. I also have satellite pictures of my house from 10 years ago and the hedge line was very defined. Nothing in their governing documents addresses encroachments. In the state of Florida, can this be considered as the boundary by acquiescence since they haven't complained about it for 10 years now?
Based on the following, your argument looks promising to me.

https://edis.ifas.ufl.edu/fe107#:~:text=Boundary%20by%20agreement%20and%20boundary%20by%20acquiescence%20both%20involve%20a,that%20the%20land%20must%20be

=== Start Excerpt ===
Boundary by Acquiescence
Two important elements of this are:

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), and
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.
E.g., King v. Carmen, 237 So. 2d 26, 28 (Fla. 1st DCA 1970); Givens, 509 So. 2d at 993; 1 Fla. Jur 2d Adjoining Landowners § 51 (2014); Fla. Stat. § 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 construction of a fence does not suffice to establish the element of uncertainty in a boundary dispute case. See, e.g., 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 fifty years. 509 So. 2d at 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. See also 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 thirty 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. at 993–94.
=== End Excerpt ===

The above is only prep for a meeting with a real estate attorney. You may very well need an attorney to win your claim.

BenA2
(Texas)

Posts:1040


04/19/2021 10:00 AM  
It is probably a toss-up without more information. It would probably lean in your favor (based on the link Augustine provided) if you had a fence instead of a hedge. I think the court would probably look at a lot of different things, such as does the hedge appear to be a boundary for your yard or is it more of an open area? Has the HOA allowed other similar encroachments by other owners?

The biggest question in my mind is, does another survey exist showing the same boundary as the current survey? If it does, you would have a hard time convincing a court that the property line is disputed.

SamJ6
(Wisconsin )

Posts:23


04/19/2021 10:45 AM  
The hedge is very well defined that this is the line between my property and the common area. For the past 10 years, they've been cutting their grass and maintaining the common area up to the hedge and I've been maintaining my property up to the hedge too. There are a lot of owners with similar encroachments. Every house, including mine, on that pond actually has the original sprinkler lines way off-line and that's where everyone assumed their lines were.

The plat that was originally recorded in court makes my hedge completely off-line and the sprinkler line off too. But I believe since they failed to enforce or protest the boundary lines for 10 years now, they have waived their rights to enforce and they accepted that the hedge is the line.
BenA2
(Texas)

Posts:1040


04/19/2021 1:18 PM  
I think they probably have abandoned their right to enforce any restrictions disallowing you to plant the hedges but it doesn't sound like that is the issue. According to the aforementioned court case, there has to be a dispute in the property line for you to claim boundary by acquiescence. Your last paragraph indicates that there has never been a dispute over the line, only that they have allowed your hedges to be in a common area without complaining. Given that the current survey and survey from 10 years ago show the same thing, there is no dispute so I can't imagine a judge would give you the property.
JohnC46
(South Carolina)

Posts:11539


04/19/2021 1:44 PM  
SAm

Has the association raise the issue? If not longer it goes on the more it would be in your favor. Let a sleeping dog sleep.
AugustinD


Posts:1695


04/19/2021 3:32 PM  
Posted By BenA2 on 04/19/2021 1:18 PM
According to the aforementioned court case, there has to be a dispute in the property line for you to claim boundary by acquiescence. Your last paragraph indicates that there has never been a dispute over the line, only that they have allowed your hedges to be in a common area without complaining. Given that the current survey and survey from 10 years ago show the same thing, there is no dispute so I can't imagine a judge would give you the property.
So far, this is not how I read the meaning of "uncertainty" in the 1987 McDonald v. Givens Florida appeals court case. Here's a link to the decision: https://casetext.com/case/mcdonald-v-givens.

But I admit I am not certain of my reading of McDonald v. Givens.
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