Michael T. Olexa, Jeffery Van Treese II, and Christopher A. Hill
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 coexist with rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring prominence to 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, placement of fences, encroachments, boundary lines, easem*nts, contracts, nuisances, and a landowner's responsibilities towards persons who enter his or her 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court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time.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 educate and 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 the authors, the Institute of Food and Agricultural Sciences, the Center for Agricultural and Natural Resource Law, 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 handbook.
Readers wishing to find further information from the Florida Statutes may access those statutes online at http://www.leg.state.fl.us/STATUTES/.
Acknowledgments
We wish to acknowledge Susan Gildersleeve at the University of Florida for her assistance in editing this handbook.
Easem*nts and Rights-of-Way
What are easem*nts and rights-of-way?
An easem*nt 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 easem*nt cannot exist between two pieces of land owned by the same person. J. C. Vereen & Sons v. Houser, 167 So. 45, 47 (Fla. 1936); 20 Fla. Jur. 2d Easem*nts § 1 (2022). 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. See Wyatt v. Parker, 128 So.2d 431 (Fla. 2d DCA 1961); 20 Fla. Jur. 2d Easem*nts § 9 (2022). A common example of a right-of-way easem*nt 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. Fla. Stat. § 704.01 (2021). In such cases, a court may determine whether compensation is due to the landowner. Fla. Stat. § 704.04 (2021).
How are easem*nts usually created?
Usually, the title-holding landowner expressly grants an easem*nt by means of a written agreement, deed, or deed reservation. 20 Fla. Jur. 2d Easem*nts §§ 16–24 (2022). See, e.g., Branscombe v. Jupiter Harbour, LLC, 76 So.3d 942, 947 (Fla. 4th DCA 2011). This written contract must show the landowner's intention to create a permanent, not temporary, right in a specific piece of land. Limited types of easem*nts may also be created by implication. 20 Fla. Jur. 2d Easem*nts § 16 (2022). Areas such as streets, alleys, or parks are usually found to be easem*nts by implication. Fla. Stat. § 704.01(1) (2021). Once created, the location of the easem*nt cannot be changed without agreement. When an easem*nt is blocked, the easem*nt owner may pass over the adjoining land as far as is necessary to avoid the blockade.
Who is responsible for maintaining an easem*nt?
Usually, the owner of the easem*nt is responsible for maintenance. 20 Fla. Jur. 2d Easem*nts § 49 (2022). The parties to an express easem*nt may alter their responsibilities by agreement. The owner of an implied easem*nt is responsible for its maintenance. Morrill v. Recreational Development, Inc., 414 So.2d 590, 591 (Fla. 1st DCA 1982); Southeast Seminole Civic Ass’n, Inc. v. Adkins, 604 So.2d 523, 526 n.2 (Fla. 5th DCA 1992). If a statutory-implied easem*nt is located on land used to enclose a farm, grove, or livestock, the user of the easem*nt may be required to maintain a gate or cattle guard anywhere a fence is interrupted by the easem*nt. Fla. Stat. § 704.02 (2022).
What other forms of easem*nt can be created or granted to a landowner or party using a piece of property?
There are two other available forms of easem*nts:
- Prescriptive Easem*nts
- Conservation Easem*nts
A prescriptive easem*nt, similar to adverse possession, is designed to obtain rights less than full ownership to land based on long-term use or enjoyment rather than agreement or statutory methods. In order for a prescriptive easem*nt to exist, a party must show all of the following:
- Actual, continuous, and uninterrupted use (not possession) for twenty years
- Use, under a claim of right, in conflict with the landowner's use (i.e. use of the easem*nt must not be with the consent of the landowner)
- Knowledge of the landowner or use so open, notorious, visible, and uninterrupted that knowledge is imputed to the landowner
Downing v. Bird, 100 So.2d 57, 64 (Fla. 1958); Crigger v. Florida Power Corp., 436 So.2d 937, 942-43 (Fla. 5th DCA 1983); 2 Fla. Jur. 2d Adverse Possession § 60 (2022).
A conservation easem*nt is an express easem*nt created to limit further development of property. Under Florida Statutes § 704.06, a conservation easem*nt acts as a perpetual preservation effort of the land's natural state. Fla. Stat. §704.06 (2022). This kind of easem*nt also is created to maintain the existing uses of the land at the time of the easem*nt such as agricultural, historical, cultural, or archeological purposes. Conservation easem*nts are acquired by either a governmental body or a charitable corporation or trust in order to prevent activities such as construction, dumping, excavation, and/or tree removal at a designated property. Once such an easem*nt is created on a piece of property, it cannot be changed to allow development. 20 Fla. Jur. 2d Easem*nts § 10 (2022). Also, see Florida Statutes § 704.06(11) on not limiting rights to negotiate for sale for purpose of linear facilities. Fla. Stat. § 704.06(11) (2022).
If I grant an easem*nt to my adjoining landowner, can that owner use the easem*nt for any purpose?
No. Courts settling disputes over use of easem*nts look to the grant to find the parties' intention at the time of the easem*nt's creation. Any use that was not intended by the parties at the time of the easem*nt's creation will not be allowed. If there is no clear intention, the courts usually will allow any use of the easem*nt that is reasonably necessary for its full enjoyment as measured by the easem*nt's purpose, the situation of the property, and any surrounding circ*mstances. Seven Hills, Inc. v. Bentley, 848 So.2d 345, 360-361 (Fla. 1st DCA 2003). The court cites these rules to validate a trial court's award of damages for the misuse of a written easem*nt by an electrical company. Likewise, an owner of an easem*nt for drainage purposes cannot use the easem*nt for activities not consistent with drainage. See Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328, 330 (Fla. 1954) (stating that the burden of a right-of-way upon the servient estate must not be increased to any greater extent than reasonably necessary and contemplated at the time of initial acquisition). The general rule is that the burden placed upon the landowner granting the easem*nt must not be unnecessarily increased by uses that the parties did not intend. 20 Fla. Jur. 2d Easem*nts §§ 41, 43, 46 (2022).
What are my rights if one of the parties violates the terms of the easem*nt?
Generally, a lawsuit may be brought to seek damages for injury to, or disturbance of, the easem*nt; for breach of contract granting the easem*nt; or for an injunction to stop the easem*nt's obstruction. 20 Fla. Jur. 2d Easem*nts §§ 69-73 (2022).
What happens if someone builds a fence blocking an easem*nt?
When a fence is blocking an entrance or exit to another property under the consideration of constructive notice (where a reasonable person should have known of the existence of the easem*nt), the court will first determine if there is an easem*nt. The court may order the fence be removed. In Prime West, Inc. v. Camargo, the purchaser of a lot brought action against the owner of a private road, seeking the removal of the fence as relief. 906 So.2d 1112, 1113 (Fla. 3d DCA 2005). The courts determined that when an owner conveys part of his property, the owner impliedly grants all those easem*nts which existed and which were used for the benefit of the land that was conveyed. Id. at 1114. Similarly, an implied easem*nt is determined by the circ*mstances surrounding a conveyance and means that whenever a part of the property is obviously in use as an incident or as an appurtenance, it passes by implication when the land is sold. Id. The court held that the purchaser had an implied easem*nt to use the road. Id.
What is a statutory way of necessity?
A recent development in Florida law is a category of easem*nt used when a person claims he must use a portion of another person's land to gain access to public or private roads. When a dwelling or agricultural enterprise is cut off from every practical route to public or private roads by land, fencing, or other improvements, the owner of that land may claim a desire to use a portion of neighboring land. The said portion of neighboring land may serve as an easem*nt for persons, vehicles, stock, cable television service, utilities, and telephone service to the land that is surrounded or shut out from access to roads. Fla. Stat. § 704.01(2) (2022).
Can a landowner be compensated for the imposed statutory way of necessity?
Yes. If someone is claiming a statutory way of necessity, you may file suit in a county or circuit court to challenge the claim or to request the court to award compensation for the use of your land. Fla. Stat. §§ 704.01, 704.04 (2022).
Summary
With an easem*nt, a landowner, without sharing profits, has the right to use and enjoy another landowner's land. Easem*nts are created either by a written contract or by implication in situations such as streets, parks, or alleyways. Their use is defined by the intention of the parties at the time of the easem*nt's creation. If this intention is unclear, the courts will look to the easem*nt's character, purpose, and surrounding circ*mstances in determining the easem*nt's proper use. Rights-of-way give a specific person or persons a means of accessing a public road or highway through another's land. In the case of an easem*nt through fenced agricultural lands, the user of the easem*nt is generally responsible for maintaining gates or cattle guards at any location where the easem*nt intersects a fence.
In the case where one of the parties violates the terms of the easem*nt, it is always best to try to amicably resolve the situation by open discussion and negotiation. If this is not possible, the party may sue for an injunction to stop the violation and/or for damages for breach of contract.
Further Information
Handbook of Florida Fence and Property Law https://edis.ifas.ufl.edu/entity/topic/BOOK_Florida_Fence_and_Property_Law
