Title Issues, Easements & Boundary Disputes

Title Issues, Easements & Boundary Disputes

Few areas of real estate law generate as much litigation—or as much surprise for unsuspecting owners—as title defects, easement conflicts, and boundary disputes. A property that appears straightforward on a closing statement can carry decades of recorded encumbrances, conflicting surveys, prescriptive rights asserted by neighbors, or unreleased liens that surface only when the owner tries to sell, refinance, or develop. Florida’s complex chain-of-title history, its overlay of riparian and littoral rights along the coast, and its fast-moving development markets make these conflicts particularly common.

John Montague, Esq. represents commercial owners, developers, individual landowners, lenders, and title insurers in resolving cloud-on-title actions, easement enforcement and modification disputes, and adverse possession and boundary line claims. The firm combines transactional precision with seasoned litigation experience—qualifications honed during John’s years at Locke Lord LLP (now Troutman Pepper Locke), an AM Law 200 firm.

Common Title Defects We Resolve

Title defects can arise from clerical errors, fraudulent conveyances, undisclosed heirs, missing releases of mortgages or judgments, defective acknowledgments, or scrivener’s errors in legal descriptions. The most frequent issues we see include unreleased mortgages from prior owners; gaps in the chain of title where a deed was never recorded; mechanics’ liens that survived closing because of timing or lack of proper notice; tax deeds and tax lien certificates with procedural defects; and probate-related defects where heirs were not properly noticed or where a personal representative lacked authority to convey.

Resolving these defects typically requires a quiet title action under Chapter 65, Florida Statutes, supported by a careful title examination, service on all known and unknown claimants, and a final judgment that extinguishes adverse interests. We routinely coordinate with title underwriters—Old Republic, Fidelity, First American, Stewart—to either obtain affirmative coverage or trigger claims under existing policies.

Easement Disputes: Express, Implied, and Prescriptive

Easements are among the most litigated property interests in Florida. Disputes typically fall into three categories. Express easements are created by recorded deed or agreement; the conflict usually centers on the scope of permitted use, maintenance obligations, or whether the easement was overburdened by changed circumstances. Implied easements—including easements by necessity, by prior use, and easements implied from a recorded plat—arise when a parcel becomes landlocked or when shared infrastructure was used by a common grantor. Prescriptive easements require open, notorious, continuous, and hostile use for the statutory period of 20 years.

We litigate easement scope cases involving access roads, shared driveways, utility corridors, dock and riparian access, conservation easements, and view corridors. We also handle easement modification, relocation under Crescent Resources v. Martin-style facts, and easement extinguishment by merger, abandonment, or release.

Boundary Disputes and Adverse Possession

Boundary disputes commonly arise from conflicting surveys, fence lines that drift over time, encroaching structures (decks, fences, sheds, even portions of buildings), and ambiguous metes-and-bounds descriptions in old deeds. Florida recognizes several legal theories that can shift a boundary regardless of the recorded description: boundary by acquiescence, boundary by agreement, boundary by estoppel, and adverse possession under both color of title (§ 95.16, Fla. Stat.) and without color of title (§ 95.18, Fla. Stat., which requires payment of taxes for seven consecutive years).

We work closely with licensed Florida surveyors to build the factual record—historical aerials, plat retracements, monument analysis—and pair that with the statutory and case-law framework to either defend the recorded boundary or prove the alternative.

Practical Guidance for Owners and Developers

Most title and boundary problems are cheaper to prevent than to litigate. We recommend ordering a current survey before any acquisition, even when title insurance is in place; reading the Schedule B-II exceptions on every commitment carefully; insisting on affirmative coverage over known easements where appropriate; obtaining estoppel certificates from easement holders before development; and recording memoranda of agreements that clarify boundary or easement understandings reached informally with neighbors. For owners already in conflict, prompt action matters—statutes of limitation, doctrines of laches, and the marketable record title act all penalize delay.

When litigation is unavoidable, we evaluate early whether to seek temporary injunctive relief (often appropriate where construction is imminent), file a lis pendens to protect the property from third-party transfers, or pursue declaratory relief to obtain a binding interpretation without forcing the dispute into a damages trial.

Frequently Asked Questions

I bought title insurance. Why am I still dealing with this issue? Title insurance covers losses caused by covered defects, but the policy contains exceptions—including survey matters, easements not of record, and post-policy events. We help owners decide whether to tender a claim, pursue the underwriter for affirmative defense, or address the issue outside the policy.

My neighbor’s fence has been on my property for 15 years. Can I still move it? Possibly, but the answer turns on whether your neighbor can establish boundary by acquiescence or has begun running an adverse possession clock. A survey and a litigation-readiness assessment should come before any self-help.

How long does a quiet title action take? Uncontested actions with proper service can resolve in three to six months. Contested actions involving missing heirs, foreign defendants, or competing claims of ownership routinely take a year or more.

Can I extinguish an old easement that’s no longer used? Sometimes—through merger, abandonment, written release, or the marketable record title act. The analysis is fact-specific and almost always requires a careful title search and survey.