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424 So. 2d 988

Docket No. 82-519.

Brewer v. Hibbard

Estill BREWER and Mary Brewer, His Wife, Appellants, v. Ray T. HIBBARD and Lorraine E. Hibbard, His Wife, Appellees.

District Court of Appeal of Florida

Decided January 12, 1983.

District Court of Appeal of Florida · decided 1983-01-12

Cited by 2 later decisions — most recently August 2008

2 state decisions

Relies on Johnson v. Killian · 359 So. 2d 2 - Monell v. Golfview Road Ass'n

Good law ✅— No negative treatment on recordhow we know

Decided 1983-01-12

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¶1*989 Johnie A. McLeod, Apopka, for appellants.

¶2Mikel W. Carpenter of Jones & Morrison, P.A., Altamonte Springs, for appellees.

¶3SMITH, McFERRIN, Associate Judge.

¶4This is an Appeal from a summary final judgment entered on February 1, 1982, directing appellants to remove certain encroachments from property owned by appellees. 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 appellees' property which extends onto appellants' property.

¶5The 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).

¶6Nothing 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.

¶7Further, 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.

¶8That 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

¶9REVERSED and REMANDED.

¶10COBB and SHARP, JJ., concur.

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