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Publication #FE108

Handbook of Florida Fence and Property Law: Easements and Rights of Way1

Michael T. Olexa and Jeffery Van Treese II2

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, 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court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time.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 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 Susan Gildersleeve at the University of Florida for her 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, 167 So. 45, 47 (Fla. 1936); 20 Fla. Jur 2d Easements § 1 (2014). 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 Easements § 9 (2014). 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. Fla. Stat. § 704.01 (2014). In such cases, a court may determine whether compensation is due to the landowner. Fla. Stat. § 704.04 (2014).

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 Fla. Jur 2d Easements §§ 16–24 (2014). 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 easements may also be created by implication. 20 Fla. Jur 2d Easements § 16 (2014). Areas such as streets, alleys, or parks are usually found to be easements by implication. Fla. Stat. § 704.01(1) (2014). 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 section 49 [2014]). 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, 591 [Fla. 1st DCA 1982]; Southeast Seminole Civic Association, Inc. v. Adkins, 604 So.2d 523, 526 n.2 [Fla. 5th DCA 1992]). 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 704.02 [2014]).

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:

  • Prescriptive Easements

  • Conservation Easements

A prescriptive easement, 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 easement 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 easement 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 (2014).

A conservation easement is an express easement created to limit further development of property. Under Florida Statutes section 704.06, a conservation easement acts as a perpetual preservation effort of the land's natural state. This kind of easement also is created to maintain the existing uses of the land at the time of the easement such as agricultural, historical, cultural, or archeological purposes. Conservation easements 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 easement is created on a piece of property, it cannot be changed to allow development. 20 Fla. Jur 2d Easements § 10 (2014). Also, see Florida Statutes sub-section 704.06(11) on not limiting rights to negotiate for sale for purpose of linear facilities.

If I grant an easement to my adjoining landowner, can that owner use the easement for any purpose?

No. Courts settling disputes over use of easements look to the grant to find the parties' intention at the time of the easement's creation. Any use that was not intended by the parties at the time of the easement's creation will not be allowed. If there is no clear intention, the courts usually will allow any use of the easement that is reasonably necessary for its full enjoyment as measured by the easement's purpose, the situation of the property, and any surrounding circumstances (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 easement by an electrical company. Likewise, an owner of an easement for drainage purposes cannot use the easement for activities not consistent with drainage (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 easement must not be unnecessarily increased by uses that the parties did not intend (20 Florida Jurisprudence 2d Easements sections 41, 43, 46 [2014]).

What are my rights if one of the parties violates the terms of the easement?

Generally, a lawsuit may be brought to seek damages for injury to, or disturbance of, the easement; for breach of contract granting the easement; or for an injunction to stop the easement's obstruction (20 Florida Jurisprudence 2d Easements sections 69–73 [2014]).

What happens if someone builds a fence blocking an easement?

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 easement), the court will first determine if there is an easement. 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 easements which existed and which were used for the benefit of the land that was conveyed. Id. at 1114. Similarly, an implied easement is determined by the circumstances 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 easement to use the road. Id.

What is a statutory way of necessity?

A recent development in Florida law is a category of easement 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 easement 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.

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.

Summary

With an easement, a landowner, without sharing profits, has the right to use and enjoy another landowner's land. Easements 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 easement's creation. If this intention is unclear, the courts will look to the easement's character, purpose, and surrounding circumstances in determining the easement'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 easement through fenced agricultural lands, the user of the easement is generally responsible for maintaining gates or cattle guards at any location where the easement intersects a fence.

In the case where one of the parties violates the terms of the easement, it is always best to try to amicably resolve the situation by open discussion and negotiation. If this is not possible, 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 http://edis.ifas.ufl.edu/TOPIC_BOOK_Florida_Fence_and_Property_Law

Footnotes

1.

This document is FE108, one of a series of the Food and Resource Economics Department, UF/IFAS Extension. Original publication date November 1999. Revised December 2006, August 2010, November 2014, and November 2018. Visit the EDIS website at https://edis.ifas.ufl.edu for the currently supported version of this publication.

2.

Michael T. Olexa, Ph.D., J.D. professor, Food and Resource Economics Department, and Director, Center for Agricultural and Natural Resource Law, UF/IFAS Extension, Gainesville, FL, and member, The Florida Bar; and Jeffrey W. Van Treese II, J.D., Ph.D. attorney with Zappolo and Farwell, P. A., in Palm Beach Gardens, Florida, practicing commercial litigation and director of the Palm Beach Lakes High School Law Academy, member, The Florida Bar, and conducts research in horticulture, with an emphasis on tree hazard risk assessment.


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.