Want to file three motions to dismiss in Florida. Plaintiff is not on deed to property but is married to person on deed. Statute of limitations may have run out. This is a nescience suite filed by neighborhood bully with too much time on hands

We need more details. Who os suing whom on what grounds?

want to file three motions to dismiss in florida. plaintiff is not on deed to property but is married to person on deed. statute of limitations may have run out. this is a nescience suite filed by neighborhood bully with too much time on hands
The suite states that I put driveway on plaintiff property. Driveway has been in same location for over 20 years. Long story ongoing dispute bad karma. This guy needs to be stopped

Did the driveway exist when you or the neighbor purchased the property? Do you have a plat map or survey that shows the property boundaries?

Did the driveway exist when you or the neighbor purchased the property? Do you have a plat map or survey that shows the property boundaries? the driveway was there when I purchased 18 years ago.neighbor at time was terrific. He died . His wife remarried 3 years ago. At about the same I added a load of shell to exsisting drive. This January new husband discovered cap and rod boundary. I do not dispute that part of this drive was on his property. It is a pie shape 3' wide at the beginning to nothing over 24 ' within six days he had a backhoe in dug up 24x60' approx of his yard, brought in two large dump loads of dirt, two loads of compost and though he did not sod included a sod estimate in his complaint

It appears that you have an adverse possession claim to ownership of the pie-pieced section of the driveway. Do not say that you "do not dispute that part of this drive was on his property". That could be used against you.

It really depends upon what, if anything, you and the dead neighbor agreed upon. Did the neighbor use the driveway too?

You say you want to file three motions to dismiss, based upon, as I understand what you said:

1) plaintiff is not on deed to property - in other words, plaintiff doesn't have standing; is not the real party in interest. That would be a valid reason for dismissal, but he could amend to substitute his wife.

2) statute of limitations may have run out. Essentially the "adverse possession" defense I mentioned.

3) nescience suite ( = nuisance suit?) - not a valid defense.

I believe this Florida statute applies:


95.18 Real property actions; adverse possession without color of title.--

(1) When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

(2) For the purpose of this section, property shall be deemed to be possessed in the following cases only:

(a) When it has been protected by substantial enclosure.

(b) When it has been usually cultivated or improved.
You will note the pertient period is seven years, well short of the 18 years you say you occupied the disputed area.


By the way, you would file one motion to dismiss with several reasons, not three motions.

the driveway was there when i purchased 18 years ago.neighbor at time was terrific. he died . his wife remarried 3 years ago. at about the same i added a load of shell to exsisting drive. this january new husband discovered cap and rod boundry. i do not dispute that part of this drive was on his property. it is a pie shape 3' wide at the beginning to nothing over 24 ' within six days he had a backhoe in dug up 24x60' approx of his yard, brought in two large dump loads of dirt, two loads of compost and though he did not sod included a sod estimate in his complaint

This confuses me. You say that three years ago you added shell edging to the existing driveway. Did this encroach on the neighboring property or what part of the driveway already encroaching?

You say the neighbor dug up part of the driveway? Did he dig up only what was on his property line? Did he inform you prior to doing so? Did his digging damage part of the driveway on your side? Is he suing you for the costs of digging up what was on his property?

I'm not sure that you DO qualify for an adverse possession claim. According to the law AK cited, you would have had to file with the property assessor that you were claiming the property and have paid taxes on the piece. If you did not do that, your claim may be invalid.

So, first, this is not a nuisance suit. Second, withoit knowing the exact wording of the complaint, he may not need to have his wife file the suit, but I suspect he does. Third, your only hope is the adverse possession defense, but I'm not sure that will fly.

If, however, his digging damaged any part of your property, you can counter sue for those damages.

According to the law AK cited, you would have had to file with the property assessor that you were claiming the property and have paid taxes on the piece. If you did not do that, your claim may be invalid.


It's possible that this statutory language can be interpreted so that if you and the county figured your tax lot included the disputed territory you are OK. I don't know. This is a case in which you really need the services of an attorney.

This statute would seem to bar the neighbor from suing you also (also 7 years):


95.14 Real property actions; limitation upon action founded upon title.--No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:

(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before commencement of the action; or

(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

By the way, this matter doesn't belong in the "small claims" category. Perhaps the neighbor sued you in small claims court, but (under the above statute) his claim for damages would be barred; and a quiet title action should be removed to state district court.

It's possible that this statutory language can be interpreted so that if you and the county figured your tax lot included the disputed territory you are ok. I don't know. This is a case in which you really need the services of an attorney.

This statute would seem to bar the neighbor from suing you also (also 7 years):



By the way, this matter doesn't belong in the "small claims" category. Perhaps the neighbor sued you in small claims court, but (under the above statute) his claim for damages would be barred; and a quiet title action should be removed to state district court. thank you both for the input. Some more information. Three days after discovering property line neighbor put up fence post in exsisting driveway making it very difficult to get in and out. I pulled permit to add to culvert and drive and while permit was being processed neighbor hired backhoe and dug up approx one third of his front yard removing all exsisting grass he than dumped two truck loads--largedump-of fill and had it graded and mixed in with small amount of shell referenced in pie shaped area. He than dumped a load of compost finished his fence got a quote for sod which he never had laid and sued me for the whole works 1,200 plus 195 costs could this also relate to easement prescription? Thanks again for your help

... could this also relate to easement prescription? ...

A prescriptive easement may be applicable where your use was not exclusive (you both used it), yes.

He has sued you in small claims jurisdiction for damages. I don't know that the work you describe relates to mitigation of your trespassing on his property (which trespassing he apparently is alleging). To the extent that it doesn't so relate, he would not be entitled to it even if he were to win on the ownership issue.

You would defend with the adverse possession (or prescriptive easement) claim and counterclaim for damages to your property (the pie-shaped piece).

The law doesn't work that way. One cannot put up a fence on a disupted boundary then sue the other property owner for the costs. The boundary dispute has to be adjudicated first.

So, while he may win on the boundary dispute, he's not likely to win damages. If you counter sue for damages made to your property, you may win.

If he does win and he is correct about where he placed his fence (by the way his fence has to be totally within his property it cannot be placed ON the line without your permsission) then the likelihood, is you will just need to move your driveway.

The law doesn't work that way. One cannot put up a fence on a disupted boundary then sue the other property owner for the costs. The boundary dispute has to be adjudicated first.

So, while he may win on the boundary dispute, he's not likely to win damages. If you counter sue for damages made to your property, you may win.

If he does win and he is correct about where he placed his fence (by the way his fence has to be totally within his property it cannot be placed ON the line without your permsission) then the likelihood, is you will just need to move your driveway.

Thanks scottgem your replys along with some others have led me to my local county law library. There are some case references that may help. I am trying to draft a motion to dismiss based on 1 plaintiff not on deed. 2 statute of limitations. 3 easement of prescription. 4 spite fence. 5 suit filled in wrong court. I think that your points about adverse possession are correct according to fl. Law. I am really out of my element here but will continue to slog along. Thanks for all your help.

As for plaintiff not being on deed, that can be easily fixed by add the wife (titleholder) as plaintiff. That's only a delaying tactic. Though you should use it, because it will get the courts upset about him wasting their time.

The key question then becomes where the property line is. If he's correct, then his fence will stay, if not, it comes down or is moved.

Either way, he will owe you damages to your property. Again, I do not believe he will be awarded the costs of building the fence since he jumped the gun and built it BEFORE he sued.

Good Luck and keep us posted.