Q: My neighbor and I had been arguing because of an ongoing personality clash. To help solve the problem, I installed a fence to separate our properties. My neighbor now claims that the fence is located on his property and is demanding that I either move the fence onto my property or remove it. Am I legally obligated to move the fence?

A: The first thing you should do is have a surveyor inspect the property to determine whether or not the fence is on your neighbor’s property. If your fence is located on your neighbor’s property, you must move it. The construction of a fence or any other structure on another’s property constitutes a “continuing trespass,” which can entitle the property owner whose rights are being violated to go to court and obtain an injunction. In your case, the injunction would require you to remove the fence from your neighbor’s property.

In addition, you may be held liable to your neighbor for monetary damages. While there are not any fixed rules governing the measure of damages, the judge or jury can award damages to compensate for the detrimental impact caused by the fence’s trespass on your neighbor’s property, including damages caused by the violation of your neighbor’s property rights, the value of your use of your neighbor’s property rights, the value of your use of your neighbor’s land, the cost of moving the fence and your neighbor’s mental suffering and annoyance (particularly if the trespass is accompanied by insults, rude language or treatment and contempt). If the trespass is found to be deliberate, willful, or malicious, you may also be subject to punitive damages.

In the future, when you want to install a fence or any other structure on your property, you should have a surveyor stake the property so that the fence installer will be able to determine the property line. Additionally, prior to installation, you should determine if any setbacks or height restrictions exist and if approvals are required from any homeowner’s association or master property owner’s association, and make sure the installer obtains all governmental permits.

James M. Hankins is a partner in the Real Estate & Finance Practice Group at the law firm of Hodgson Russ LLP in Boca Raton. He is certified by the Board of Legal Specialization and Education of The Florida Bar as a specialist in real estate law. He may be reached at jhankins@hodgsonruss.com. The above Question & Answer is provided for general information purposes only and should not be considered as legal advice as to any specific matter. You should not act solely upon this information without consulting legal or other professional advisors.