In short: The neighbor behind the fence won. In Kaczmarek v. Kruer, two Key West neighbors fought over a 5-by-52-foot strip behind a chain-link fence that had stood for decades. The trial court found a prior owner had acquired the strip by adverse possession, and the Third DCA affirmed without opinion in 2014.
The Facts
Two Key West neighbors, both representing themselves, disputed a strip of land about 5 feet wide and 52 feet long behind a chain-link fence. Because the Third District affirmed without an opinion, what follows is what the record and the arguments showed, as described for the oral argument, not appellate findings.
The fence had stood since at least the 1970s, and property records suggested it dated to 1956. The appellant pointed out that the deeds described the neighbor’s lot as 32 feet 7 inches wide, and that the neighbor had given that same width to his own surveyor, so the strip should fall outside his lot.
The trial court ruled for the neighbor, Wayne Kruer. As described, it found that a prior owner of his lot had already acquired the strip by adverse possession under the law in effect decades earlier, based on seven years of possession of land enclosed by the fence, at a time when the trial court understood tax payment was not required for that kind of claim.
The Decision
The Third District affirmed per curiam without opinion, so the judgment that the strip belongs to the neighbor’s lot stood. The court did not say why. Adverse possession cases usually turn on facts the trial judge found after hearing the evidence, such as how long the fence stood and how the land was used, and appellate courts generally defer to those findings.
A PCA is not precedent. It does not decide which version of Florida’s adverse possession statute applied or whether the trial court’s reading of older law was right.
The Law
Adverse possession is complete once its statutory elements are met for the required period. Title then vests in the possessor and passes to later owners, even if no one sues for decades and even if later deeds repeat the old boundary. That is why the law in effect when the possession ran, not today’s statute, can decide a modern boundary case.
Today Florida recognizes two forms. Under section 95.16, a claimant under color of title (a deed or other instrument that turns out to be defective) must possess for 7 years, and possession includes land protected by a substantial enclosure. Under section 95.18, a claimant without color of title must possess for 7 years, file a return with the property appraiser, and pay all taxes and assessments during that time. Florida also recognizes boundary by acquiescence, where neighbors uncertain of the true line both treat a fence as the boundary for the statutory period.
Current law (2026): Section 95.18 was amended in 2011 and 2013 (ch. 2011-107, ch. 2013-246) to tighten the return and tax-payment requirements for claims without color of title. The trial court, as described, applied older law to possession that ran decades earlier. The post cites the current 2026 text for present law.
Lessons
- A deed’s stated dimensions do not always control. A fence that has stood for decades can mean title shifted long ago.
- Before buying, compare the survey to the fences on the ground and ask about any encroachment shown.
- Older adverse possession claims are judged under the law in effect when the possession ran, so research the statute’s history.
- Boundary cases turn on old photographs, records and witnesses. Representing yourself against that evidence is difficult.
Source: Kaczmarek v. Kruer, No. 3D12-2589 — Fla. 3d DCA (January 29, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above. (The channel has this argument posted twice; the other upload is here.)
The Fence Has Stood Since the '50s — Who Owns the Strip? | Kaczmarek v. Kruer, 3D12-2589
Go Deeper
- Easement Disputes in Florida: Utility, Access, and Prescriptive Easements
- Who Gets the House? A Disputed Family Deed and the Recording Act (Cutlip v. Dorsey)
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
Can a neighbor's fence give them my land in Florida?
It can, if the legal elements of adverse possession or boundary by acquiescence were met for the required period, which may have happened under a prior owner long ago. In Kaczmarek v. Kruer the trial court found a prior owner acquired a strip behind a decades-old fence, and the Third DCA affirmed without opinion.
How long does adverse possession take in Florida?
Seven years under both section 95.16 (with color of title) and section 95.18 (without color of title). Claims without color of title also require filing a return with the property appraiser and paying the taxes during that period. Once the period runs, title vests and later owners take subject to it.
Does my deed's lot width beat an old fence line?
Not necessarily. If adverse possession was completed by someone in the past, title to the strip passed then, and later deeds repeating the original dimensions do not undo it. Courts look at the history of possession, the fence’s age, and the law in effect at the time.
What does a per curiam affirmance (PCA) mean in Florida?
It means the appellate court upheld the trial court’s judgment with the single word affirmed and no opinion. The losing side gets no explanation, the ruling below stands, and the decision is not precedent for any legal point. In Kaczmarek v. Kruer, the PCA left the trial court’s result in place without endorsing any particular reason for it.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
