Expert: Richard Taylor, AIA - 4/10/2008

Question
Hello,

My husband and I own a home (built in 1916) in a historic neighborhood in Florida. The home is a prairie-style arts and crafts home with exposed rafters visible on the exterior roof overhangs. The home includes a portechere/carport which is original to the home. There are two levels to the roof: one on the upper story and one on the lower story which extends over the portechere. The portechere roof hangs over onto my neighbor's property by about 2-3 feet. He now plans to sue us to have the encroaching portion of the roof "removed." To my knowledge, he has no complaint other than the fact that it hangs over his property - I am not aware of any drainage problem resulting from the roof. I am trying to gather information about how historic preservation laws can help us - so that we will not have to alter our roof and completely change the appearance of the house. The Historic Preservation Commission in our town has not been too helpful - they function more as an approval authority for changes than as a protection mechanism. Thanks for any assistance...

Answer
Katie - thanks for your question!

I'm not a lawyer, nor am I giving you legal advice here (you need to hire an attorney) but this is my layman's opinion of your situation.

Your roof overhang may have "squatter's rights" over the property line; in other words, it's been there so long without complaint that you effectively have a legal easement for the overhang.

I believe the law calls it a "prescriptive easement" - if no one's objected to the overhang since 1916 (assuming the property line hasn't moved) then the owner may have lost his rights to object.  If the current owner bought the property recently, he would have known about it, and accepted it by purchasing the property.  It's his responsibility to review the survey and see such encroachments.

But you guys are neighbors, right?  Isn't there some way to work this out?  What detriment is it to your neighbor that the overhang exists?  This is one of those things that is an intregal part of the charm of historic area - everyone learns to love it and live with it.

I lived in an historic area for eight years - my roof actually hung over my neighbors - when it rained hard the overflow from my roof spilled onto my neighbors!  But so what?  None of us lives in a bubble - we all share our neighborhoods; our lives are intertwined! My neighbor and I laughed about it and went on with our lives.

What will this guy do if he ever needs a favor from you someday?  What if he wants to do an addition that requires approval from the commission, and his neighbors?

Talk to him and see what he's really up in arms about, and find out what you can work out with him - maybe he's just had a really bad day.

The character of the neighborhood - and his property value - may suffer if you deface your house.  Once historic buildings are "remuddled" they're gone forever!

If you need further ammunition, I'd suggest contacting the Florida State Historic Preservation Officer (www.flheritage.com) and the Florida Trust For Historic Preservation (www.floridatrust.org) for more information.  You might also check www.oldhousejournal.com for links to organizations that muster support for historic neighborhoods.

Do as much research as you can to find out the historical significance of the house - start with your county Auditor and Recorder's records.  You should be able to trace ownership back to the original land grants.

In the meantime, go to the National Register of Historic Places website (www.nps.gov/nr) and make an application for registration.  Then you can say the house is in the process of being listed on the national registry...that may stall things for a while!  If you get listed, that doesn't protect the property, but you can apply for Federal funding for repairs and that does provide protection.

Call the local newspaper - they LOVE this kind of story...and will do a lot of the research for you.

But talk to your neighbor first - things may not be as bad as they seem!

Hope this helps!

Richard Taylor, AIA
www.rtastudio.com
www.rtaplans.com