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Publication #FE104

Handbook of Florida Fence and Property Law: Background and Definitions1

Michael T. Olexa, Eugene E. Shuey, Joshua A. Cossey, and Katherine Smallwood2

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court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time.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 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 http://www.leg.state.fl.us/STATUTES/.

Acknowledgments

We wish to acknowledge Carol Fountain and Travis Prescott at the 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 588.15; 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 [Fla. 1973]). Some areas of the common law that have been changed in Florida relate to a landowner's duty to trespassers, and the duty to fence, which is 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 588.01). 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 588.011). 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 588.011).

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 588.09). Owners of legally enclosed land must maintain the condition of the fence and the posted notice (Florida Statutes section 588.11; 27 Florida Jurisprudence 2d section 4).

What are the requirements for posted notice on a fence to assure it is in compliance with Florida law?

Posted notices on fences must prominently display, in letters of at least two inches in height, the word "posted" together with 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 588.10).

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 http://edis.ifas.ufl.edu/TOPIC_BOOK_Florida_Fence_and_Property_Law

Footnotes

1.

This is EDIS document FE104, a publication of the Food and Resource Economics Department, UF/IFAS Extension Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular 1242. Published November 1999; revised December 2006 and August 2010. Reviewed April 2014. Please visit the EDIS website at http://edis.ifas.ufl.edu.

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; UF/IFAS Extension, 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. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.