Handbook of Florida Fence and Property Law: Trees and

FE962

Handbook of Florida Fence and Property Law: Trees

and Landowner Responsibility

Michael T. Olexa, Jeery W. Van Treese II, and Christopher A. Hill

1. This is EDIS document FE962, one in 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 September 2022.Visit the EDIS website athttps://edis.ifas.u.edufor the

currently supported version of this publication.

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; Jeery W. Van Treese II, School District of Palm Beach County, Law Academy Instructor, is a

commercial litigation attorney who also holds a Ph.D. in ecology and is a member of the Florida Bar; andChristopher A. Hill, law student, University of

Florida, Levin College of Law; UF/IFAS Extension, Gainesville, FL 32611.

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 aliations. For more information on obtaining other UF/IFAS Extension publications, contact your county’s UF/IFAS Extension oce.

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. Andra Johnson, dean for UF/IFAS Extension.

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 signicant 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-ve years. Conicts between these interests

bring to prominence issues such as the rights and respon-

sibilities 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 signicant importance.

is 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 respon-

sibility to fence when livestock is kept on the property, the

rights of adjoining landowners to fence, the placement of

fences, encroachments, boundary lines, easements, con-

tracts, nuisances, and a landowner’s responsibilities towards

persons who enter his or her property.

is 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.

is handbook should not be viewed as a comprehensive

guide to fencing and property laws. Additionally, many

details of cited laws are le out due to space limitations.

is handbook should not be seen as a statement of legal

opinion or advice by the authors on any of the legal issues

discussed within. is 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 handbook.

Handbook of Florida Fence and Property Law: Trees and Landowner Responsibility

Readers wishing to nd further information from the

Florida Statutes may access those statutes online at http://

www.leg.state..us/STATUTES/.

Acknowledgments

We wish to acknowledge Carol Fountain and Susan Gilder-

sleeve at University of Florida for their assistance in editing

this handbook.

Landowner Responsibilities for

Trees

What is the rule for the removal of a

healthy tree on boundary line?

e removal of a tree on a boundary line by one landowner

without the consent or authorization of the adjoining

landowner may result in liability for the “reduction in value

of the land resulting from removal of the tree,” as well as

for the “loss of the ornamental value and creature comforts

provided by the tree.” Elowsky v. Gulf Power Co., 172 So.2d

643, 645 (Fla. 1st DCA 1965).

In Elowsky, a tree was located on the boundary line between

the properties of the plainti (“P”) and the defendant

(“D”). Elowsky, 172 So.2d at 644. P was a police ocer who

worked night shis and regularly had to sleep during the

day. Id. e tree shaded and cooled the bedroom during

the aernoon. Id. D removed the tree, and P had trouble

sleeping aer its removal. Id. e jury awarded P $500 in

damages. Id. e First District upheld the verdict, stating:

“An owner of real estate has a right to enjoy it according to

his own taste and wishes, and the arrangement of build-

ings, shade trees, fruit trees, and the like may be very im-

portant to him, may be the result of large expense, and the

modication thereof may be an injury to his convenience

and comfort in the use of his premises which fairly ought

to be substantially compensated, and yet the arrangement

so selected by him might be no considerable enhancement

of the sale value of the premises, it might not meet the

taste of others, and the disturbance of that arrangement,

therefore, might not impair the general market value . . .”

Id. at 645 (citing Gilman v. Brown, 91 N.W. 227 (Wis. 1902).

What is the liability for over-hanging

branches and encroaching roots?

Branches and roots frequently extend across property lines.

Whether branches or roots from a tree on an adjacent

property are the responsibility of the landowner whose

property holds the tree, or of the landowner whose prop-

erty has the branches overhang or roots encroach, depends

upon the branches or roots themselves. If the branches or

roots are healthy, then the landowner with the tree located

on his or her property is not liable for damage caused by

those branches or roots. e adjoining landowner may, at

his or her own expense, trim back the branches or roots as

he or she desires up to the property line. If the branches are

dead, however, then the landowner with the tree located on

his or her property may be responsible, and could be liable

for damages caused by the branches. 1 Fla. Jur. 2d Adjoining

Landowners § 8 (2022).

In Scott v. McCarty, 41 So.3d 989 (Fla. 4th DCA 2010), a

property owner brought action against a neighbor alleging

that overhanging branches and roots from the neighbor’s

tree caused damage to his property. e court armed the

trial court’s dismissal with prejudice of appellant’s com-

plaint for damages. e court’s decision was based on Gallo

v. Heller, 512 So.2d 215, 216 (Fla. 3d DCA 1987), which

explained the common law rule:

“[A] possessor of land is not liable to persons out-

side the land for a nuisance resulting from trees and

natural vegetation growing on the land. e adjoin-

ing property owner to such a nuisance, however, is

privileged to trim back, at the adjoining owner’s own

expense, any encroaching tree roots or branches and

other vegetation which has grown onto his property.”

Scott, 41 So.3d at 989 (quoting Gallo, 512 So.2d at 216)

(alterations in original).

e Scott court recommends the adjoining property owner

engage in self-help to combat encroaching vegetation by

suggesting the landowner resort to trimming. By doing so,

this leaves an open question as to what other methods of

self-help are available. It is not clear whether the adjoining

property owner may spray encroaching vegetation with

herbicide such as glyphosate, which could translocate and

kill the entire plant. Alternatively, the adjoining property

owner may wish to use a stump grinder to destroy roots

that have encroached onto their property. It is not clear

whether these or other self-help methods are permitted,

or whether employing them would create a cause of

action against by the encroaching landowner against the

encroached landowner.

Handbook of Florida Fence and Property Law: Trees and Landowner Responsibility

Which landowner is responsible for dead

or live trees falling on adjoining property?

e health of the tree may determine which land-

owner is responsible for damages to property. Florida

Jurisprudence—a secondary source—provides that where

a dead tree falls on an adjoining property and damages

that property owner’s home, the landowner who owns the

property where the tree originally was located is responsible

for damages. 1 Fla. Jur. 2d Adjoining Landowners § 8 (2022).

Alternatively, Florida Jurisprudence provides that where a

live tree falls on an adjoining property and damages that

property owner’s home, the adjoining property landowner

is responsible for damages. Put another way, consider

Landowner A (property owner of tree) and Landowner B

(adjoining landowner). If Landowner A’s dead tree falls on

Landowner B’s property, Landowner A is responsible for

damages. Conversely, if Landowner A’s live/living tree falls

on Landowner B’s property, Landowner B is responsible for

damages.

However, there is no case law discussing the live/dead tree

distinction discussed in Florida Jurisprudence. Florida

Jurisprudence is not binding authority and a court may

disregard it when adjudicating a case. Under a negligence

theory, one could argue that a dead tree is a hazard that

could cause foreseeable damage to a neighboring property.

In other words, it is foreseeable that a dead tree will fail

(especially during a storm), which creates a common law

duty of care to remove the dead tree to in order to prevent

damage to neighboring property. Under this theory, the

duty to remove trees may not be limited to dead trees, but

may also include live trees with a high risk of failure such

as trees with co-dominant leaders and girdling roots. As

of this writing, there is no case law on point discussing the

duty owed by landowners to remove dead/hazardous trees

to prevent damage to neighboring landowners. It will be up

to future courts to decide this point.

A case touching on this lack of precedent is Balzer v. Ryan,

263 So.3d 189, 191 (Fla. 1st DCA 2018), which considered

“whether the adjoining property owner is liable to the

tree owner when the self-help remedy authorized by Gallo

causes damage to the tree.” As the court noted, there is “no

Florida case addressing the issue.” Id. In the absence of

controlling precedent, the First District upheld the circuit

court’s ruling that Balzer “had no cause of action . . . if the

tree was damaged when Ms. Ryan exercised her ‘privilege’

to cut the roots encroaching onto her property,” even

though cutting the roots “undermined the tree’s structural

integrity and increased the risk that the tree might someday

fall” on Balzer’s house. Id. at 190-91. Still, there remains is

no case law on point discussing the duty owed by landown-

ers to remove dead/hazardous trees to prevent damage to

neighboring landowners

Summary

A landowner is not liable to the adjoining property owner

for an alleged nuisance caused by overhanging branches

and roots from a tree on his or her property; however, the

adjoining property owner is legally entitled to trim back,

at the adjoining owner’s own expense and only up to the

property line, any encroaching tree roots or branches and

other vegetation that had grown onto his or her property.

If the branches or roots are dead, or a dead tree falls onto

the adjoining landowner’s property, then the landowner

of the property where the tree was originally located

may be responsible. If a live tree falls onto the adjoining

landowner’s property, then the adjoining landowner is

responsible for any damages.

Further Information

Handbook of Florida Fence and Property Law

https://edis.ifas.u.edu/entity/topic/

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