Handbook of Florida Fence and Property Law: Table of Contents 1

Transcription

1 FE677 Handbook of Florida Fence and Property Law: Table of Contents 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms, orange groves, croplands of soybeans, sugarcane, cotton, and peanuts, and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time.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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE677, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

2 Handbook of Florida Fence and Property Law: Table of Contents 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Table of Contents Background and Definitions (FE104) Duty to Fence (FE105) Adjoining Landowners (FE106) Boundaries and Possession (FE107) Adverse Possession (FE678) Easement and Rights of Way (FE108) Maintaining the Boundaries and Grounds (FE109) Fence Contracts (FE110) Visitors and Responsibilities to Visitors (FE111) Eminent Domain (FE679) Glossary (FE112) Further Information Circular 1242, Handbook of Florida Fence and Property Law Florida_Fence_and_Property_Law

3 FE104 Handbook of Florida Fence and Property Law: Background and Definitions 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE104, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

4 Handbook of Florida Fence and Property Law: Background and Definitions 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Introduction Upon becoming a state, Florida adopted the traditional English common law rule requiring owners of livestock to keep their animals off neighboring unenclosed lands. The common law is based primarily on three rules: (1) a landowner is entitled to have land fenced or unfenced as the landowner pleases; (2) each person's land, whether fenced or unfenced, is considered by the law as enclosed; and (3) livestock and animal owners are required to keep their animals on their own land (Florida Statutes section ; Fisel v. Wynns, 667 So.2d 761 [Fla. 1996]; Rockow v. Hendry, 230 So.2d 717 [Fla. 2d DCA 1970]; Seaboard v. Maige, 109 Fla. 229, 147 So. 215 [1933]; Selby v. Bullock, 287 So.2d 18 [1973]). Some areas of the common law that have been changed in Florida relate to a landowner's duty to trespassers and the duty imposed upon all owners of junkyards, private game preserves, and railroad companies, and upon pool owners in some municipalities. Florida is now a ''closed range'' state and has adopted the rule of strict liability for trespassing livestock. Courts have awarded substantial damages for injury caused by livestock roaming on public roads (1 3 Agricultural Law section 3.12, Matthew Bender & Company, Inc., a member of the Lexis Nexis Group [2005]). What is a fence? A fence is generally defined as a visible, tangible obstruction that has been 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: general and legal. A general fence is a fence that must be "substantially constructed," or made from rails, logs, post and railing, iron, steel, or other such material, and be no less than five feet high. To the extent of two feet from the ground, the material used to construct the fence should not have gaps greater than four inches. If a general fence is constructed in a ditch that is at least four feet wide, the fence height can be measured as five feet from the bottom of the ditch to the top of the fence (Florida Statutes section ). The statutory requirements of a general fence to prevent the intrusion of swine will constitute a legal fence in those remote instances where the running of swine is legal (Florida Statutes section ). Currently, most counties in Florida prohibit the free running of swine. A legal fence is a fence that is at least three feet high and made of barbed or other soft wire of no less than three strands stretched securely on supports that are up to twenty feet apart or, when using battens, up to sixty feet apart for non-electric and one hundred and fifty feet for electric using high-tensile wire. Other materials may be used if the requirements are substantially met. A legal fence may include a gateway if it meets the standards required of a legal fence and is constructed with a livestock guard at least six feet wide extending to each end of the opening (Florida Statutes section ). What are the requirements for legally enclosed land under Florida law? Land is legally enclosed, or posted, when a legal fence encloses it, and its boundaries display posted notice to the public. The law views any part of the land bounded by ocean, gulf, bay, river, creek, or lake as legally enclosed (Florida Statutes section ). Owners of legally enclosed land must maintain the condition of the fence and the posted notice (Florida Statutes section ; 27 Florida Jurisprudence 2d section 4).

5 Handbook of Florida Fence and Property Law: Background and Definitions 3 What are the requirements for posted notice on a fence to assure it is in compliance with Florida law? Posted notice on fences must prominently display, in letters of at least two inches in height, the word "posted" and the name of the owner, lessee, or occupant of the land. The notices must be placed no less than five hundred feet apart, at every corner, and at any gate or opening of fence. Similar notice is required for land bounded by water (Florida Statutes section ). Does a legal fence protect me from liability? Having a legal fence does not automatically relieve a landowner from all potential liability. In Florida Board of Education. v. Andrews, 903 So.2d 1048 (Fla. 1st DCA 2005), the First District Court of Appeals (1st DCA) of Florida noted that a legal fence is not necessarily an adequate fence, and compliance with Chapter 588 of the Florida Statutes did not resolve the question of liability. In that case, a bull broke through a fence and collided with a vehicle, resulting in the driver's death (id.). The court reversed and remanded the case for a new trial to address the issue of negligence and to answer the question of whether the defendant had constructed an adequate fence to restrain the bull (id.). Further Information Circular 1242, Handbook of Florida Fence and Property Law Florida_Fence_and_Property_Law

6 FE105 Handbook of Florida Fence and Property Law: Duty to Fence 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE105, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

7 Handbook of Florida Fence and Property Law: Duty to Fence 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and the University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Duty to Fence As a livestock owner, do I have a duty to fence? Florida law does not impose on the owners of livestock and animals the duty to fence, but as discussed below, owners may be civilly or criminally liable for animals that stray onto public roads. What if I do not have a fence and my livestock escape? Owners who intentionally, knowingly, or negligently permit their animals or livestock to run at large or stray upon the public roads are liable for any resulting injuries or property damage, and may even be guilty of a second-degree misdemeanor (Florida Statutes sections and ). Criminal penalties may include a term of imprisonment not exceeding sixty days and/or a fine of as much as $500 (Florida Statutes sections and ). Similar criminal penalties may apply to the owner of livestock carrying any contagious diseases who knowingly and without permission from another owner allows his livestock to run at large or come into contact with other animals (Florida Statutes section ). Case law examples for civil liability include Hughes v. Landers, 215 So.2d 773 (Fla. 2d DCA 1968), and Prevatt v. Carter, 315 So.2d 503 (Fla. 2d DCA 1975). The law also gives officials the right to impound and sell off animals found running at large, regardless of the owner's liability (Florida Statutes sections ). Is there any liability if a car strikes an animal that strays onto a public highway? Whenever a car or truck collides with an animal that is at large on a public highway and the driver is killed by the resulting collision, the owner of the animal cannot sue the driver's estate for damage to his animal (Florida Statutes section ). If he is not negligent himself, the animal owner may bring suit for negligence against a driver who survives the collision and causes damage to the animal (Toole v. Dupuis, 735 So.2d 582 [Fla. 4th DCA 1999]). The driver or the driver's estate may have a cause of action against the animal owner for injury to or death of the driver or any passengers if the complainant can prove both ownership of the animal and that the owner at least allowed the animals to stray (Florida Statutes section ; Selby v. Bullock, 287 So.2d 18 [Fla. 1973]). Liability may be assessed or not assessed against the owner of an escaped animal based on the facts of the case. For example, in Hughes v. Landers, Hughes and his daughter collided with a horse while driving their automobile. resulting in the daughter's death. The lawsuit against the animal's owner provided evidence showing the general disrepair of the fence used to corral the horse (the fence was negligently maintained as shown by the facts that there were no hinges or locks on the cattle gap gate, the gate was secured only by two rotted and flimsy ropes, the bottom rope was untied, and a section of the fence had loose wire where two posts were leaning at a forty-five degree angle). Also, in Prevatt v. Carter, where a motorcyclist driving at night suffered injuries when he collided with a black cow, the court said that the motorcyclist could establish the owner's negligence by showing that the fence surrounding the livestock was in disrepair and that the owner knew his livestock were escaping from the grazing area (the mere fact that livestock are running at large on a public highway does not automatically mean that the owner intentionally or negligently permitted the animals to run at large). There must be proof of

8 Handbook of Florida Fence and Property Law: Duty to Fence 3 negligence. For example, there would be no negligence if a horse escaped from a closed gate that could only be opened by human hands (Lee v. Hinson, 160 So.2d 166 [Fla. 2d DCA 1964]), but negligence could exist if an animal could open the gate by slipping a chain off a bent nail (James v. Skinner, 464 So.2d 588 [Fla. 2d DCA 1985]). Courts have determined that an owner whose cows broke through three separate enclosures before reaching a public road was not careless or negligent (Welch v. Baker, 184 So.2d 188 [Fla. 1st DCA 1966]), but reasoned that negligence may exist when a properly maintained fence was not strong enough to contain a large bull (Hanson v. Scharber, 749 So.2d 563 [Fla. 2d DCA 2000]). An owner might escape liability if there is evidence, such as unknown tire tracks or a different knot used to tie a gate, that another person caused the animal's release (Gordon v. Sutherland, 131 So.2d 520 [Fla. 3d DCA 1961]). If my fence is broken or damaged, can someone other than the owner of the property be held liable? A person who causes the destruction of part of someone else's fence could be liable for any losses resulting from the fence being brought down (Florida Statutes section ). Is there any liability if I do not own the animals that are kept on the land I own? Liability for damages resulting from an animal that is at large remains with the legal owner of the animal and not the person who is merely the legal owner of the land on which the animal is located (Davidson v. Howard, 438 So.2d 899, 902 [Fla. 4th DCA 1983]). Who is liable if only one family member is at fault and the entire family owns the animal? Under Florida law, a wife is not liable for her husband's tort when she has no knowledge of his tortious conduct and does not authorize or participate in the act (Boswell v. Russell, 819 So.2d 925 at 927 [Fla. 5th DCA 2002]). Under the Warren Act, a wife's ownership of a bull merely imposes a duty on her to not act negligently in allowing it to stray upon the public roads. It did not impute her husband's knowledge or negligence to her (id. at 928). Do any industries have a duty to fence in Florida? Several industries have a duty to fence under certain circumstances. Any company or individual not engaged in a bona fide mining operation must either fill in or fence any hole that is larger than two feet wide and two feet deep to prevent livestock or domestic animals from falling into any holes (Florida Statutes sections ). Landfills, solid waste facilities, and construction and demolition debris disposal facilities must include fences to prevent unauthorized access or waste disposal (62 Florida Administrative Code , 710, amd 730). Operators of amusement rides must fence or otherwise restrict any areas where people may be endangered by the operation of the ride (Florida Statutes section ). Any junkyard within 1,000 feet of any interstate or federal-aid highway must be "screened by natural objects, plantings, fences, or other appropriate means" so that the junkyard cannot be seen from the road. The law also requires that the fence always be kept in a condition of good repair. Failure to do so may result in fines against the owner of the facility (Florida Statutes section ). Florida law no longer imposes a duty on railroads to erect fences to prevent livestock from getting on the tracks and causing collisions (Florida Statutes section ). Case law, however, still exists that indicates that railroads passing through livestock farms have the duty to keep a fence in good repair to prevent livestock from getting onto the railroad tracks. The railroad could be liable for the death or injury of livestock resulting from the failure to maintain the fence (Seaboard Air Line Railway Company v. Maige, 109 Fla. 229, 147 So. 215 [1933], affirmed, Doral Country Club, Inc. v. Klatzkin, 433 So.2d 57 [Fla. 3d DCA 1983]). Do any individuals other than livestock owners have a duty to fence in Florida? Private game preserves or farms must fence the area to prevent the escape of domestic game and the entrance of wild game (Florida Statutes section ). Special fencing requirements exist for anyone who keeps captive wildlife classified as a

9 Handbook of Florida Fence and Property Law: Duty to Fence 4 Class I or Class II carnivore (Florida Administrative Code Annotated Statute 68A ). Residential pool owners may opt to enclose their pools to meet the safety feature requirement and to pass the final pool inspection (Florida Statutes sections and ). Additionally, local ordinances may impose duties on swimming pool owners to erect and maintain a fence around pools. Do any prohibitions on fencing exist under Florida law? It is a first-degree misdemeanor for anyone to obstruct a public road or highway with a fence or other obstruction (Florida Statutes section ). The confinement of animals without fresh water, food, regular exercise, and a change of air could result in a charge for a first-degree misdemeanor (Florida Statutes section ). Until June 2000, it was illegal to fix or cause to be fixed on unfenced property any stakes or canes or anything that could kill or maim cattle or other livestock (previously Florida Statutes section ). Summary Florida law requires waste disposal facilities, companies that dig open pits, and owners of junkyards to fence their property. Railroad companies may still be liable for any injuries to livestock resulting from their failure to keep their fence in good repair. For junkyards, the duty to fence arises from those junkyards which are within 1,000 feet of any interstate or federal-aid highway. Special fencing requirements also exist for private game preserves, swimming pools, and amusement rides. It is illegal for anyone to obstruct a public highway with a fence, or to confine animals without food and water. Further Information Circular 1242, Handbook of Florida Fence and Property Law TOPIC_BOOK_Florida_Fence_and_Property_Law

10 FE106 Handbook of Florida Fence and Property Law: Adjoining Landowners 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE106, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS website at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer-Chancy, InterimDean

11 Handbook of Florida Fence and Property Law: Adjoining Landowners 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and the University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments Summary Owners of adjoining land are generally not required to raise a fence at a common boundary line. If an owner does decide to raise a fence, he does so at his own cost and is not entitled to any contribution from the adjoining landowner, unless they have an agreement that says otherwise. Further Information Circular 1242, Handbook of Florida Fence and Property Law TOPIC_BOOK_Florida_Fence_and_Property_Law We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Adjoining Landowners How does the law define an adjoining landowner? Adjoining landowners are legally defined as individuals whose lands are separated by a common boundary line (1 Florida Jurisprudence 2d Adjoining Landowners section 1). As an adjoining landowner, when am I required to reais a fence? If I raise a fence, am I entitled to some contribution from the other landowner? Generally, owners of adjoining land are under no legal responsibility to fence their land at the common boundary line. However, an owner who does decide to fence his land has no legal claim of contribution by the adjoining landowner unless there is an agreement to contribute or the adjoining landowner notifies the owner that he will pay his proportionate share. In the case where two adjoining landowners purchase land in which a fence already exists, the adjoining landowners are considered joint owners of the fence and have a joint obligation to repair and maintain the fence (1 Florida Jurisprudence 2d Adjoining Landowners section 60).

12 FE107 Handbook of Florida Fence and Property Law: Boundaries and Possession 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE107, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

13 Handbook of Florida Fence and Property Law: Boundaries and Possession 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Boundaries and Possession What is the distinction between land ownership and possession? A person who holds legal or equitable title to property owns that property, whereas a person who exercises control and dominion over property possesses it. The distinction is important in disputes over adverse possession, boundary by agreement, and boundary by acquiescence, as discussed later. What are the ways to show land ownership? The best and most important way to check ownership is to make sure the description of land on the deed matches the land you possess. This information can be obtained through the County's Official Records or Property Appraiser's Office. In certain cases, possession of land may show ownership by proof of certain acts, such as: Cultivates or improves the land or part of a single lot of land; Protects the land by a substantial enclosure, such as a fence; When, although not enclosed, the land has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant (Florida Statutes section ). What are the legal problems of adjoining landowners? In dealing with land possession among adjoining owners, most of the legal problems center around two areas: 1. Encroachments 2. Overlaps or hiatus What are encroachments? An encroachment occurs when an individual occupies any portion of land above or below the surface beyond what is described in the deed. It is important to note that the individual who has encroached upon the other person's land does so without either an easement or agreement to do so, or any written instrument, judgment, or decree giving title to the encroached land (1 Florida Jurisprudence 2d Adjoining Landowners section 13). If my neighbor puts up a fence that encroaches on my land, how should I react? What are my legal rights? Where there is no dispute or mistake regarding the true boundary line and someone builds a fence that clearly encroaches upon your land, immediately notify that person of the encroachment in writing. In such cases, the encroaching person is required to remove the fence. If the individual refuses to remove the fence, you may bring an action to eject the individual from your property. The existence of a fence can constitute evidence of the required doubt or uncertainty as to the true boundary in a boundary by acquiescence dispute (Carroll v. Fordham, 781 So.2d 1156 [Fla. 1st DCA 2001]). The more difficult types of encroachment problems are described by boundary by agreement and boundary by acquiescence. Boundary by Agreement The three important aspects of this are: 1. Uncertainty or doubt as to the true boundary line

14 Handbook of Florida Fence and Property Law: Boundaries and Possession 3 2. An agreement that a certain line will be treated by the parties as the true line 3. Subsequent occupation by the parties in accordance with agreement for a period of time sufficient to show a settled recognition of the line as a permanent boundary (Watrous v. Morrison, 332 Fla. 261, 14 So. 805 [1894]; Campbell v. Noel, 490 So.2d 1014 [Fla. 1st DCA 1986]; 1 Florida Jurisprudence 2d Adjoining Landowners sections 47 and 48) In Campbell, two adjoining landowners were uncertain of the true common boundary between the two tracts. One landowner, Pate (P), surveyed his land. At this time, P's surveyor met with the adjoining landowner, Campbell (C), and C's surveyor. Based on this survey, P erected a fence that ran the length of the agreed boundary between the adjoining tracts. The fence remained without dispute for five years during which time C patched and repaired P's fence several times. After five years, C suspected an encroachment from another one of his neighbors and had his land surveyed. The survey revealed that P's fence encroached C's property by sixty feet over the actual boundary line. Six years later, C sued to eject P from the land. The court used boundary by agreement to allow P to maintain his fence. First, the court found that genuine uncertainty as to the true boundary line could exist even without open disagreement between the adjoining landowners. This uncertainty was shown by C's testimony stating that he did not know where the boundary line was at the time P had the land surveyed. Second, the court found that C's actions in maintaining the fence implied agreement to treat the fence as the boundary line. Third, the court found that the parties had recognized the boundary line by occupying the land for a sufficient amount of time. Concerning the time requirement, the court stated that boundaries by agreement have been found when parties occupied the land for as little as two years. Boundary by Acquiescence Two important elements of this are: 1. A dispute or uncertainty from which it can be implied that both parties are in doubt as to the true boundary line (meaning both landowners lack actual knowledge of the true boundary) 2. Continued occupation and acquiescence in a line other than the true boundary for the period of the statute of limitations, or more than seven years (King v. Carmen, 237 So.2d 26, at 28 [Fla. 1st DCA 1970]; McDonald v. Givens, 509 So.2d 992 [Fla. 1st DCA 1987]; 1 Florida Jurisprudence 2d Adjoining Landowners sections 47 and 48; Florida Statutes section 95.12) In the absence of direct evidence of a dispute, all five district courts in Florida and the Florida Supreme Court agree that mere consruction of a fence does not suffice to establish the element of uncertainty in a boundary dispute case (Van Meier v. Kelsey, 91 So.2d 32 [Fla. 1956]). Boundary by agreement and boundary by acquiescence both involve a disputed boundary line (note that if existence of a boundary line in a particular location is without dispute, the person who is encroaching upon the land cannot claim possession of the land), but boundary by acquiescence requires that the land must be encroached upon for at least seven years. In other words, action brought to recover property after seven years of encroachment will probably be denied. In the case of McDonald v. Givens, the owner before McDonald (M) had erected a fence, which remained on the property for at least fifty years. Since the fence was erected, M and her predecessors, along with other individuals residing in the area, considered the fence to be the boundary between the two properties. Thirteen years after M had obtained title to her property, Givens (G) purchased property that shared a common boundary with M's property. G's survey disclosed that M's fence was encroaching upon G's property as described in their deeds and the true boundary line was eastward of the fence. The court found that while no direct evidence was available to show uncertainty over the boundary line at the time of the fence's erection, without any other explanation for its specific location, the placement and duration of the fence itself is sufficient evidence to show doubt and establish for boundary by acquiescence (McDonald v. O'Steen, 429 So.2d 407, 409 [Fla. 1st DCA 1983]). Furthermore, the court stated that while G protested the current fence, no evidence existed that any of the owners before G protested the fence's existence as an encroachment. The fence was maintained for thirty years, without

15 Handbook of Florida Fence and Property Law: Boundaries and Possession 4 dispute, before G gained title to the property. This surpassed the necessary seven years needed under the statute of limitations. The court found a boundary by acquiescence, fulfilled by the two elements, and G's protest was denied. Miscellaneous Boundary Court Cases While the above two cases are representative of the different situations in which boundary by agreement and boundary by acquiescence apply, many other cases exist that also show their application. A list of a few additional cases is as follows: Euse v. Gibbs, 49 So.2d 843 [Fla. 1951], indicates that when adjoining landowners settle a boundary dispute by agreement and the agreed boundary is different than as described in the deed, the taxes paid on the property actually defined in the deed will act as a payment on the taxes of the disputed land. Reil v. Myers, 222 So.2d 42 [Fla. 4th DCA 1969], clarifies that a verbal agreement that a certain line is the boundary is legal because it merely defines boundaries and is not required to be in writing because title to the real estate is not passed. McDonald v. O'Steen, 429 So.2d 407 [Fla. 1st DCA 1983], provides a discussion of the application of boundary by acquiescence when there is little direct evidence of an actual dispute over the boundary. Sanders v. Thomas, 821 So.2d 1214 [Fla. 1st DCA 2002], refuses to apply the Givens rule for doubt or uncertainty in cases of boundary by acquiescence when surveys over the course of the encroachment showed the actual boundary line. Jones v. Muldrow, 921 So.2d 762 [Fla. 1st DCA 2006], the court affirmed that the elements of boundary by acquiescence are (1) uncertainty or dispute as to the location of the true boundary, (2) location of a boundary line by the parties, and (3) acquiescence in the location for the prescriptive period (Sembler Marine Partners, Ltd. v. Skidmore, 842 So.2d 1003, 1005 [Fla. 4th DCA 2003]). Summary If your title clearly describes your land and, according to your deed and your neighbor's deed, your neighbor's fence is clearly encroaching upon your land, you should immediately notify your neighbor in writing of the encroachment. Your neighbor is required to remove this encroachment. If the location of the true boundary line is unclear from both your deed and your neighbor's deed, avoid future dispute by notifying your neighbor of the ambiguity, calling a surveyor, and clarifying your boundary lines. In the case where you think boundary by agreement or boundary by acquiescence may apply to the dispute, think of the aspects of each and whether they actually apply to your case. Remember the three aspects of boundary by agreement: 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 3. Subsequent occupation by the parties in accordance with the agreement for a period of time sufficient to show settled recognition of the line as a permanent boundary Consider also the two aspects of boundary by acquiescence: 1. A dispute or uncertainty from which it can be implied that both parties are in doubt as to the true boundary line 2. Continued occupation and acquiescence in a line other than the true boundary for a period of more than seven years (as required by the statute of limitations) Further Information Circular 1242, Handbook of Florida Fence and Property Law Florida_Fence_and_Property_Law

16 FE678 Handbook of Florida Fence and Property Law: Adverse Possession 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms, orange groves, croplands of soybeans, sugarcane, cotton, and peanuts, and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE678, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

17 Handbook of Florida Fence and Property Law: Adverse Possession 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Adverse Possession What is adverse possession? Unlike boundary by agreement and boundary by acquiescence, adverse possession not only applies to encroachments by adjoining landowners, but also to the ownership rights of any piece of land. Adverse possession occurs when a person loses title to his property because another person has occupied the land for at least seven years, resulting in overlapping legal descriptions. In addition to the seven-year requirement, in order for an individual to adversely possess another's land, the individual must also possess the land in an open, notorious, and visible manner such that it conflicts with the owner's right to the property. Thus, party A cannot adversely possess party B's land if A has B's permission to be on B's land. Furthermore, A must possess the land continuously for a period of seven years and the possession must be exclusive to the use of others and the owner. It is important to note that since B has legal title to the land, A must clearly prove the requirements for adverse possession (Downing v. Bird, 100 So.2d 57 [Fla. 1958]; 2 Florida Jurisprudence 2d Adverse Possession sections 8 36). In addition to these basic requirements for adverse possession, Florida law requires that an adverse possessor occupy the land for at least seven years and meet either of the two following requirements: adverse possession under color of title or adverse possession without color of title. What is adverse possession under color of title (Florida Statutes section 95.16)? An adverse possessor can claim property under color of title if he meets the following two conditions: 1. The adverse possessor must show that the claim of title to the land is based on a recorded written document (even if faulty). The adverse possessor must genuinely believe this document to be the correct claim of title (Bonifay v. Dickson, 459 So.2d 1089 [Fla. 1st DCA 1984]; 2 Florida Jurisprudence Adverse Possession section 10; Seton v. Swann, 650 So.2d 35 [Fla. 1995]). 2. The adverse possessor must show possession of the property by doing one of the following to the land for at least seven years: Cultivating or making improvements Protecting by a substantial enclosure (usually a fence) If not enclosed, using the land for the supply of food or fencing timber for husbandry or the ordinary use of the occupant Partly improving a portion of a recognized lot or single farm, making the unimproved part, if in the custom of the area, considered occupied What is adverse possession without color of title (Florida Statutes section 95.18)? When an individual continuously occupies a property for seven consecutive years, lacking any legal document to support a claim to the land's title, he may establish adverse possession by filing a return with the county appraisers within one year of entry onto the property, and paying all taxes and liens assessed during possession of the property. But paying the taxes alone is insufficient to establish adverse possession or cole of title (Bentz v. McDaniel, 872 So.2d 978 [Fla. 5th DCA 2004]). The

18 Handbook of Florida Fence and Property Law: Adverse Possession 3 property is considered possessed only if the individual does one of these: 1. Cultivates or improves the land 2. Protects the land by a substantial enclosure, which is usually a fence (see Mullins v. Culbert, 898 So.2d 1149 [Fla. 2005]) Summary The requirements for adverse possession are very strict: (1) the person claiming adverse possession must possess the land openly, notoriously, and in a visible manner such that it is in conflict with the owner's right to the property; (2) this person must either have some sort of title on which to base claim of title or the person must have paid property taxes on the land claimed to be adversely possessed; and (3) this person must possess the land continuously and exclusively for a period of at least seven years. It is important to note that a prospective adverse possessor may be transformed into a trespasser if asked to leave the property by its rightful owner. The term "owner" refers to the original legal owner of a property rather than the adverse possesor of a property. If a person defies an order to leave the property (personally communicated by the owner of the property) or if the trespasser does anything to cause destruction to the property, that trespasser is guilty of a misdemeanor of the first degree (Florida Statutes section ). Furthermore, if the trespasser is armed with a firearm or other dangerous weapon during the trespass, that person is guilty of a felony in the third degree. Further Information Circular 1242, Handbook of Florida Fence and Property Law Florida_Fence_and_Property_Law

19 FE108 Handbook of Florida Fence and Property Law: Easements and Rights of Way 1 Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood 2 Preface With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other 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 rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance. This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his property. This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. 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 as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to 1. This is EDIS document FE108, a publication of the Food and Resource Economics Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular Published November 1999; revised December 2006 and August Please visit the EDIS Web site at 2. Michael T. Olexa, professor, Food and Resource Economics Department, and Director, UF/IFAS Agricultural Law Center, University of Florida, Gainesville, FL, and member, Florida Bar; Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar; Joshua A. Cossey, managing attorney, Sentinel Law P.A., Jacksonville, FL, and member, Florida Bar; and Katherine Smallwood, law student, Levin College of Law, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. 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. 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. Millie Ferrer- Chancy, Interim Dean

20 Handbook of Florida Fence and Property Law: Easements and Rights of Way 2 fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and University of Florida harmless 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 book. Readers wishing to find further information from the Florida Statutes may access those statutes online at Acknowledgments We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook. Easements and Rights of Way What are easements and rights of way? An easement is a benefit based in land ownership, other than the sharing of profits, that gives someone the right of use or enjoyment of another person's land for a special purpose not inconsistent with the general property rights of the owner. An easement cannot exist between two pieces of land owned by the same person (J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 [Fla. 1936]; 20 Florida Jurisprudence 2d Easements and Licenses in Real Property section 1). A right-of-way, generally, is the right of a specific person or class of persons to use a route to travel over the land of another (Wyatt v. Parker, 128 So.2d 431 [Fla. 2d DCA 1961]; 20 Florida Jurisprudence 2d Easements and Licenses in Real Property section 9). A common example of a right of way easement is one 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 allows a party to cross another's land at the closest point to a public highway. It is important to note, however, that where another route eventually emerges to the public highway, the common law right of way by necessity will be found to no longer exist. Furthermore, if a common law right of way ceases to exist, a statutory right of way may be found where land used for either a dwelling or agricultural, timber, or stock purposes is shut off from access to a road (Florida Statutes section ). In such cases, a court may determine whether compensation is due to the landowner (Florida Statutes section ). How are easements usually created? Usually, the title-holding landowner expressly grants an easement by means of a written agreement, deed, or deed reservation (20 Florida Jurisprudence 2d Easements and Licenses in Real Property sections 15 25). This contract must show the landowner's intention to create a permanent, not temporary, right in a specific piece of land. Limited types of easements may also be created by implication. Areas such as streets, alleys, or parks are usually found to be easements by implication (Florida Statutes [1]). Once created, the location of the easement cannot be changed without agreement. When an easement is blocked, the easement owner may pass over the adjoining land as far as is necessary to avoid the blockade. Who is responsible for maintaining an easement? Usually, the owner of the easement is responsible for maintenance (20 Florida Jurisprudence 2d Easements and Licenses in Real Property section 48). The parties to an express easement may alter their responsibilities by agreement. The owner of an implied easement is responsible for its maintenance (Morrill v. Recreational Development, Inc., 414 So.2d 590 [Fla. 1st DCA 1982]). If a statutory-implied easement is located on land used to enclose a farm, grove, or livestock, the user of the easement may be required to maintain a gate or cattle guard anywhere a fence is interrupted by the easement (Florida Statutes section ). What other forms of easement can be created or granted to a landowner or party using a piece of property? There are two other available forms of easements: