Florida Fence and Property Law: Easements and Rights-of-Way
With over 3,000 livestock farms in the state, along with horse farms, orange groves, soybeans, sugarcane, cotton, peanuts, and many other such agricultural and livestock facilities, livestock and farming have a significant impact on Florida's economy. Florida's agricultural economy has been required to co-exist with Florida's rapid population and commercial growth over the last twenty years. Conflicts between these interests have brought to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. With the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida has taken on significant importance.
This handbook is, therefore, designed to inform property owners of their rights and responsibilities in terms of their duty to fence. It discusses such areas as the property owner's responsibility to fence when s/he has livestock; the rights of adjoining landowners to fence and where they may place their fences, encroachments, boundary lines, easements, contracts, nuisances; and the landowner's responsibilities towards persons entering upon their property.
This handbook should provide a basic overview of many rights and responsibilities that farmers and farm landowners have under Florida's fencing and property laws. Many readers may value this handbook because it informs them about these rights and responsibilities. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time. This handbook should not be viewed then as a comprehensive guide to fencing and property laws. Many details of cited laws are also left out due to space limitations. This handbook should also not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed below. This handbook is not a replacement for personal legal advice, only a guide to inform the public on issues relating to fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this booklet.
Background and Definitions
Mostly all of Florida's fence law is derived from the common law. The common law is based primarily on three rules: (1) a landowner is entitled to have his land fenced or unfenced as s/he pleases; (2) each person's land, whether fenced or unfenced, was considered by the law as enclosed; (3) livestock and animal owners are required to keep their animals on their own land. The areas of the common law which have been changed by Florida are in regards to the landowner's duty to trespassers, and the duty to fence imposed upon owners of junkyards, private game reserves, railroad companies, and in some municipalities, on pool owners.
What is a fence?
A fence is generally defined as a visible, tangible obstruction raised between two tracts of land so as to separate, protect, and enclose the land.
In Florida, the legislature has provided for two types of fences: legal and general. A general fence is defined as an enclosure constructed with rails, logs, post and railing, iron, steel, or other such material, and not less than five feet high. Furthermore, the fence shall not have a gap within the material it is constructed of greater than four inches. The legal definition of a fence is one which is "at least three feet high and made of barbed or other wire consisting of not less than three strands of wire stretched securely on posts, trees, or other supports which are not more than twenty feet apart." Gateways are also included in the definition of legal fences, provided that they meet the standards of the legal definition of a fence, and that their openings have a cattle or livestock guard and are at least six feet wide, extending to each opening end. Of final note is that land surrounded by any ocean, gulf, bay, river, creek, or lake is also considered as legally enclosed.
What are the requirements for posted notice on a fence to assure it is in compliance with Florida Law?
Under Florida law, Florida Statute Section 588.10, posted notices on fences are required to appear prominently in letters of no less than 2 inches in height, with the name of the owner, lessee or occupant of the land in question. The posted notice must be placed along the boundaries of the legally enclosed area, no farther than 500 feet apart, as well as on each corner, gateway or opening of the fenced enclosure. The notice also must be placed along all boundaries of the land formed by waters, and on any trees or posts close to the banks, so that the signs are noticeable to persons approaching the boundary formed by that water.
Easements and Rights-of-Way
What are an easement and a right-of-way?
An easement is a land benefit, other than the sharing of profits, in which the owner of one land has the right to possess, use or enjoy another landowner's land. A right-of-way is the right of a person or persons to pass over the land of another. Generally, rights-of-way are for a specific person or persons, and they are for the purposes of travel over land. A common example of a right-of-way is where a landowner cannot access a public road without crossing the property of another landowner. In these situations, courts will usually find a right-of-way by necessity. This will allow a party to cross another's land at the closest point to a public highway. It is important to note that where another route eventually emerges to the public highway, then the right-of-way by necessity will be found to no longer exist.
How are easements created?
Easements are usually created first by the landowner who claims title to the land by means of a written contract granting the easement. Note that this contract must show that the landowner intended to create a permanent, not temporary, right in the land. Easements may also be created by implication. Areas such as streets, alleys, or parks are usually found to be easements by implication. When an easement is blocked, the easement owner may pass over the adjoining land as far as is necessary to avoid the blockade.
What other forms of easements can be created or granted to a landowner or party using a piece of property?
Two other forms of easements exist that property owners and parties may obtain or be granted:
• prescriptive easements
• conservation easements
In order for a prescriptive easement to exist, a party must show:
• open and notorious use of the land
• continuous and uninterrupted use of the land for 20 years
• the use of the easement is in conflict with the landowner's use
• landowners must have knowledge of the easement or that it is so visible that knowledge can be implied to the owner
This kind of easement is related to adverse possession of property, like squatter's rights. Individuals that do not actually have title to part of a piece of property have the opportunity to gain control over this easement portion.
A conservation easement is an easement created in order to keep a piece of property from further development. Under Florida Statute, Section 706.06, a conservation easement acts as a preservation effort, leaving the land in the basic possession of the state government, in the land's natural state. This kind of easement is also created to maintain the existing uses of the land at the time of the easement. Once an easement is created on a piece of property, it can not be changed to allow development.
If I grant an easement to my adjoining landowner, can that owner use the easement for any purpose s/he sees fit?
No. Generally, when settling easement disputes, courts look to the intention of the parties at the time of the easement's creation. Any use that was not intended by the parties at the time of the easement's creation will not be allowed. If there is no clear intention, then courts usually will allow any use of the easement that is reasonably necessary for its full enjoyment as measured by the easement's purpose, character, and surrounding circumstances. Thus, an owner of an easement for drainage purposes cannot use the easement for other purposes which are not consistent with the easement's intended use. The general rule to remember here is that the burden placed upon the landowner granting the easement must not be unnecessarily increased by uses which were not intended by the parties.
What are my rights if one of the parties violates the terms of the easements?
Generally, a lawsuit may be brought in terms of disturbance of an easement, damages for breach of contract granting the easement, or for an injunction to stop the easement's obstruction. One common violation to an easement is when one person wants to put a gate across an easement and another party objects and a lawsuit can be brought to prevent this development.
Easements are the benefit, other than the sharing of profits, which the owner of one land has the right to enjoy in the other landowner's land. They are created either by a written contract or by implication in situations such as streets, parks, or alley ways. Their use is defined by that use which was intended by the parties at the time of the easement's creation. If this intention is unclear, courts will look to the easement's character, purpose, and surrounding circumstances in determining the easement's use. Rights-of-way are for a specific person or persons and for purposes of accessing a public road or highway.
In the case where one of the parties violates the terms of the easement, it is always best to try to amicably resolve the situation by open discussion and negotiation. If this is not possible, then the party may sue for an injunction to stop the violation and/or breach of contract damages.
Acquiescence ­­ Conduct which implies agreement, often an acceptance through silence. Also occurs when agreement may be inferred.
Adjoining Landowners ­­ Individuals whose lands are separated by a common boundary line.
Adverse possession ­­ Acquiring title to land against the record owner through uninterrupted possession of the land for at least seven years. For possession to be adverse against the record owner, it must be actual, visible, open, notorious, hostile, definite, and exclusive.
Attractive Nuisance ­­ A dangerous instrumentality, machinery, etc. on one's land which is likely to attract children.
Boundary by Acquiescence ­­ Occurs when there is (1) a dispute from which it can be implied that both parties are in doubt as to the true boundary, and (2) continued occupation and acquiescence in line other than the true boundary for a period of more than seven years (as required by the statute of limitations).
Boundary by Agreement ­­ Occurs when there is (1) uncertainty or doubt as to the true boundary line, (2) agreement that a certain line will be treated by the parties as the true boundary line, and (3) subsequent occupation by the parties in accordance with agreement for a period of time sufficient to show settled recognition of the line as a permanent boundary.
Color of Title ­­ A claim founded on a written instrument, such as a deed, will, judgment, or decree, which is usually faulty and unknown.
Common Law ­­ Law determined by the courts or custom, as opposed to statutory law or legislative-made law.
Dangerous Instrumentality ­­ Appliances, machinery, or things natural or man-made which are dangerous by nature.
Deed ­­ A written instrument used to transfer land ownership. Also, describes the land.
Easements ­­ The right to use the land of another for a purpose which does not interfere with the landowner and does not involve the sharing of profits from the land.
Encroachments ­­ An individual who occupies a portion of land beyond what is described in the deed.
Fence ­­ Structure erected to enclose property.
General Fence ­­ Enclosure constructed with rails, logs, post and railing, iron, steel or other material, and not less than five feet high.
Injunction ­­ A court order preventing or restraining a person from doing a certain act which is injurious and unfair to the plaintiff.
Invitee ­­ One who comes upon the land of another by the other's invitation.
Junkyard ­­ A scrap metal processing facility, or a place to keep scrapped, wrecked, ruined, or dismantled machinery, motor vehicles, and other such items.
Legal Fence ­­ At least three feet high and made of barbed or other wire consisting of not less than three strands of wire stretched securely on posts, trees, or other supports which are not more than twenty feet apart.
Licensee ­­ A person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who enters upon the property of another for his or her own convenience, benefit, or gratification.
Misdemeanor ­­ A class of criminal offenses which are less serious than a felony and, as a result, have less serious penalties.
Negligence ­­ The lack of care; the failure to perform an established duty or the failure to show the degree of care require by the situation which results in injury. Also, the failure to do something which a reasonable, prudent person would have done.
Nuisance ­­ Anything which annoys or disturbs the free use of one's property or which renders its ordinary physical occupation uncomfortable.
Recreational Land ­­ When a person opens their land to the public, free of charge, for hunting, fishing, swimming, etc.
Right-of-Way ­­ A right of passage; the right of one or more persons to pass over the land of another.
Survey ­­ A written description measuring the exact dimensions of a piece of land.
Trespasser ­­ A person who enters upon the property of another without the owner's permission.
This publication is designed to provide an accurate, current and authoritative summary of the principal Florida laws that directly or indirectly relate to agriculture. The information herein should provide a basic overview of many rights and responsibilities that farmers and farm land owners have under Florida laws. Many readers may value this publication because it informs them about these rights and responsibilities. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this publication is based are subject to constant revision, portions of this publication could become outdated at any time. Many details of cited laws are also left out due to space limitations.
This information is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice and the information contained herein should not be regarded or relied upon as a substitute for professional advice. This publication is not all-inclusive in providing information to achieve compliance with laws and regulations governing the practice of agriculture. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this publication.
1. This document is FRE 282, one of a series of fact sheets of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida. This information is included in the Handbook of Florida Fence and Property Law, Circular 1242. First Published: November 1999. Please visit the EDIS Web site at http://edis.ifas.ufl.edu.
2. Michael T. Olexa is a professor in the Food and Resource Economics Department, Institute of Food and Agricultural Sciences (IFAS), University of Florida, and Director of the UF/IFAS Agricultural Law Center; Aaron Leviten is a third-year law student in the University of Florida College of Law; Monica Armster is a graduate of the University of Florida College of Law. Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, 32611.
The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other extension publications, contact your county Cooperative Extension service.
U.S. Department of Agriculture, Cooperative Extension Service, University of Florida, IFAS, Florida A. & M. University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Larry Arrington, Dean.
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