ESTILL BREWER AND MARY BREWER, HIS WIFE, APPELLANTS,
v.
RAY T. HIBBARD AND LORRAINE E. HIBBARD, HIS WIFE, APPELLEES
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The court held that the trial court erred in ordering the removal of a service station encroachment without it being requested in the complaint. It also held that the trial court should have considered balancing relative conveniences for building encroachments.
Appellants appealed a summary final judgment ordering them to remove three encroachments from appellees' property: a sign, a building corner, and a se…
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SMITH, McFERRIN, Associate Judge.
This is an Appeal from a summary final judgment entered on February 1, 1982, directing appellants to remove certain encroachments from property owned by appel-lees. The trial court ordered appellants to remove three encroachments: 1) a frame sign which extends onto appellees’ property, 2) the corner of a building which extends a few feet onto appellees’ property, and 3) a portion of a service station located on appel-lees’ property which extends onto appellants’ property.
The order requiring removal of the two buildings appears to have been entered without considering the principle of balancing relative conveniences. Johnson v. Killian, 157 Fla. 754, 27 So. 2d 345 (1946). If a building encroaches slightly on adjoining property and the encroachment is accidental, the trial court should balance the conveniences between the parties in determining whether to order the encroachment removed. Injunctive relief should be denied if the actual encroachment is not substantial and removal would result in only slight benefit. Monell v. Golfview Road Association, 359 So. 2d 2 (Fla. 4th DCA 1978).
Nothing in the record before us shows whether the trial court applied this “balancing” principle. Upon remand the trial court should determine whether the cost of removing the slight building encroachment would be disproportionate with the benefit to be gained.
Further, the complaint filed by appellees, plaintiffs below, makes no mention of the service station. Having no request before it for removal of the service station, the trial court erred in ordering its removal.
That portion of the order directing the removal of the frame sign and the remaining point on appeal do not warrant reversal. However, for the reasons stated above, the judgment of the trial court is REVERSED and REMANDED.
COBB and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kirschner v. Baldwin, 988 So. 2d 1138 (Fla. 5th DCA 2008)…concluded that the Baldwins had not willfully and intentionally violated the Declaration’s restrictions. A trial court may properly decline to order the removal of an encroachment when it would be inequitable to do so. See, e.g., Brewer v. Hibbard, 424 So. 2d 988 (Fla. 5th DCA 1983); Pilafian v. Cherry, 355 So. 2d 847 (Fla. 3d DCA 1978). A primary factor to be considered in determining whether a mandatory injunction should be entered is whether the defendant’s violation of a restrictive covenant was intentio…
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Dorsey v. Bacon, 436 So. 2d 1017 (Fla. 1st DCA 1983)…ty, or, indeed, when greater injury and inconvenience will result to the defendant from an injunction than will be caused to the plaintiff by its refusal.” 29 Fla.Jur.2d Injunctions, Section 23. . We note that our sister court in Brewer v. Hibbard, 424 So. 2d 988 (Fla. 5th DCA 1983), in reversing a summary judgment because “[T]he order requiring removal of the two buildings appears to have been entered without considering the principle of balancing relative conveniences, Johnson v. Killian, 157 Fla. 754, 27…
Authorities Cited
- Oscar T. Johnson et ux. v. Alfred B. Killian et ux., 157 Fla. 754 (Fla. 1946)
- Monell v. Golfview Rd. Ass'n, 359 So. 2d 2 (Fla. 4th DCA 1978)