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Publication #FE678

Handbook of Florida Fence and Property Law: Adverse Possession1

Michael T. Olexa, Eugene E. Shuey, and Patrick H. Todd2

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 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decisions on which this handbook is based are subject to constant revision, portions of this handbook could become outdated at any time.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 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 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 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, the requirements of adverse possession must be proved by clear and positive proof and cannot be estabalished by loose, uncertain testimony which necessitates resort to mere conjecture (Downing v. Bird, 100 So.2d 57, 64 [Fla. 1958]; Board of Trustees of Internal Improvement Trust Fund of Florida v. Lee, 934 So.2d 612, 613 [Fla. 1st DCA 2006]; 2 Florida Jurisprudence 2d Adverse Possession sections 8–36 [2014]). 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?

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, 1097 [Fla. 1st DCA 1984]; 2 Florida Jurisprudence Adverse Possession section 10 [2014]).

  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 (Florida Statutes section 95.16[2] [2014]

What is adverse possession without color of title?

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, 983 [Fla. 5th DCA 2004]). The 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, 1151–1152 [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 810.09 [2014]). 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 (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 FE678, 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, August 2010, and November 2014. Please visit the EDIS website at http://edis.ifas.ufl.edu/.

2.

Michael T. Olexa, professor, Food and Resource Economics Department, and Director, Center for Agricultural and Natural Resource Law, UF/IFAS Extension, Gainesville, FL, and member, Florida Bar. Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar. Patrick H. Todd, law student, Levin College of Law, 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. 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.