Handbook of Florida Fence and Property Law: Trees and

FE962

Handbook of Florida Fence and Property Law: Trees

and Landowner Responsibility

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

1. This is EDIS document FE962, a publication of the Food and Resource Economics Department, UF/IFAS Extension. This information is included in the

Handbook of Florida Fence and Property Law, Circular 1242. Published November 2014. Please visit the EDIS website at http://edis.ifas.u.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, certied 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 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. Nick T. Place, 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 book.

Readers wishing to nd further information from the

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

www.leg.state..us/STATUTES/.

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

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 a boundary line?

e removal of a tree on the boundary by one landowner

without the consent or authorization of the adjoining

landowner may result in liability for “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 Company, 172

So. 2d 643, 645 [Fla. 1st DCA 1965]).

In Elowsky v. Gulf Power Company, a tree was located on the

boundary line between the properties of the plainti and

the defendant (Id. 644). e plainti 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.). e defendant removed the tree,

and the plainti had trouble sleeping aer its removal (Id.).

e jury awarded the plainti $500 in damages (Id.). e

First District upheld the verdict and stated:

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

his own taste and wishes, and the arrangement of buildings,

shade trees, fruit trees, and the like may be very important

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. 645).

What is the liability for over-hanging

branches and encroaching roots?

Branches and roots frequently extend across property lines.

Whether a branch or root from a tree on an adjacent land-

owner’s property is the responsibilty of the landowner with

the tree located on his or her property or the landowner

of the property to which 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 the 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 is responsible

and could be liable for damages caused by the branches (1

Fla. Jur 2d Adjoining Landowners section 8 [2014]).

In Scott v. McCarty, a property owner brought action

against a neighbor alleging that overhanging branches and

roots from the neighbor’s tree caused damage to his prop-

erty (41 So.3d 989, 989 [Fla. 4th DCA 2010]). e Court

armed the trial court’s dismissal with prejudice of appel-

lant’s complaint for damages based upon 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 outside the

land for a nuisance resulting from trees and natural vegeta-

tion growing on the land. e adjoining 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).

Which landowner is responsible for dead

or live trees falling on adjoining property?

e health of the tree determines which landowner is

responsible for damages to property (1 Fla. Jur 2d Adjoin-

ing Landowners section 8 [2014]). In the situation 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. Alternatively, in the situation where a live tree

falls on an adjoining property and damages that property

owner’s home, the adjoining property landowner is respon-

sible 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 tree falls on Landowner

B’s property, Landowner B is responsible for damages.

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

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

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 is re-

sponsible. If a live tree falls onto the adjoining landowner’s

property, then the adjoining landowner is responsible for

any damages.

Further Information

Circular 1242, Handbook of Florida Fence

and Property Law http://edis.ifas.u.edu/

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