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Publication #FE109

Handbook of Florida Fence and Property Law: Maintaining the Boundaries and Grounds1

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 co-exist 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court decisions on which this booklet is based are subject to constant revision, portions of this booklet could become outdated at any time.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.

Maintaining the Boundaries and Grounds

What is a nuisance?

Although as a general rule a property owner is free to reasonable use of that property, a property owner cannot use the property in a way that interferes with an adjoining landowner's right to enjoy his property. If he does, a nuisance may exist. 38 Fla. Jur 2d Nuisances § 1 (2014); State ex rel. Pettengill v. Copelan, 466 So. 2d 1133, 1135 (Fla. 1st DCA 1985). Two major forms of nuisance exist: public and private. 38 Fla. Jur 2d Nuisances § 5 (2014). A private nuisance affects only private rights in property and harms only a limited number of individuals; whereas, a public nuisance causes damage to public rights, public order, or the general public. 38 Fla. Jur 2d Nuisances § 6 (2014). Nuisances can exist in a variety of circumstances, ranging from operation of an illegal activity on the property, to noise pollution, or to the erection of a fence. Both public and private nuisances can involve criminal actions or lawsuits, which can be used to obtain damages or an injunction against the landowner. 38 Fla. Jur 2d Nuisances § 85 (2014). An injunction would result in a court order to force the landowner to stop using the land in any way that was interfering with the adjoining landowners’ uses. 38 Fla. Jur 2d Nuisances § 95 (2014).

When do courts find a nuisance?

Not every use of property that inconveniences another person is automatically a nuisance. Such use may become a nuisance if the circumstances of the case (taking into consideration the prevailing land use) show that the use is continued and causes substantial harm to legal rights. The motive or intention of the property owner causing the activity is immaterial to the finding of a nuisance. Burnett v. Rushton, 52 So. 2d 645, 646 (Fla. 1951); 38 Fla. Jur 2d Nuisances § 16 (2014). Often, a statute may declare a certain use to be a nuisance. See, e.g., Fla. Stat. § 386.01 (2014) (defining sanitary nuisance). Furthermore, a court may decline to grant an injunction if it finds that the party seeking relief has an improper motive. 38 Fla. Jur 2d Nuisances § 101 (2014) (This is known as the “doctrine of clean hands.”).

Fence is a Nuisance

Where the construction of two fences “hindered use of the private road,” a court found that the fences were a nuisance. White Sands, Inc. v. Sea Club V. Condo. Ass'n, Inc., 581 So. 2d 589, 590 (Fla. 2d DCA 1990)

Fence is not a Nuisance

In this case, the plaintiff complained that the defendant, an adjoining landowner, had built a metal-slatted, chain-link fence that was high enough to block the view of their neighborhood waterfront and make their neighborhood appear more like an institution. Walden v. Van Harlingen, 220 So. 2d 670, 671 (Fla. 1st DCA 1969). The defendant claimed to have built his fence to prevent trespass by children and burglary as well as for privacy purposes. Id. The court allowed the fence to remain because other similar fences had been built in the neighborhood without complaint and the fence did not completely cut off the plaintiff's beach view. Id. Additionally, there was no spite or malice on the defendant’s part. Id.

What other kinds of requirements exist in maintaining boundaries and grounds?

Property can possess numerous restrictions that greatly affect the use of the land. The method and purpose of ditches, the amount of water used on any given day, or the types of pesticides used to kill insects are all examples of regulated practices that impact boundaries and neighboring properties. These regulations come from federal, state, and local governments, as well as special districts such as water management districts. For example, under Florida's Citrus Health Plan, you may be required to remove certain vegetation—under Florida's efforts to combat citrus canker, state law requires the removal of any infected or infested citrus, non-approved planted citrus, and citrus that has sprouted by natural means in regulated areas. Fla. Stat. § 581.1843(5) (2014). Florida may issue an “Agricultural Warrant” if there is probable cause to believe any land, plant, or livestock is infested or infected with a pest or pathogen. Fla. Stat. § 933.40(1)(a) (2014).

What if pollution crosses from my property to another?

Pollution or toxins may migrate past the boundaries of neighboring properties. This may occur through watershed, wind, or soil. There are numerous federal, state, and local laws dictating the handling, removal, and disposal of contaminated land or materials. In Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20 (Fla. 2004), the Florida Supreme Court held that Florida Statutes section 376.313(3) provides an action for damages against an adjoining property owner with hazardous substances under strict liability (requiring no proof of causation). 894 So. 2d at 24. In that case, a business with toxins on site was found strictly liable for the discharge and contamination in a neighboring property Id. at 28.

Summary

In managing a property, consideration should be given to the effect an action or structure may have on adjacent properties. When the use of a property causes substantial harm to the rights or condition of a neighboring property, the one affected by the use may bring a nuisance action. Federal, state, and local laws may require the removal of certain vegetation or anything that violates the rights of those using neighboring properties for private or public purposes. The law may require certain postings on the fences, depending on the use of the property. If pollution migrates over the boundary of one property to a neighboring site, the property owner originally storing the contaminant may be strictly liable for clean-up.

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 FE109, 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.