Could a Florida community association tell a trespasser to leave an owner's property?

Plain-English summary

A 2007 Florida Attorney General informal letter interpreted the amended definition of “authorized person” in section 810.09(3), the statute on trespass on property other than a structure or conveyance. The office said a community association could act for a private landowner in ordering a trespasser to leave, or authorize law enforcement to communicate an order, only if the owner had authorized the association as an agent. The letter said the statute appeared to require some evidence of that authorization.

The quoted amendment also described a law enforcement officer whose department had received written authorization from an owner, an owner's agent, or an authorized community association to communicate an order to leave in a case involving a threat to public safety or welfare. The letter did not say every community association automatically had authority over each owner's property.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did an association's existence alone authorize it to issue trespass warnings for an owner?
A: No. The letter read section 810.09(3) as requiring authorization from the owner for the association to act as an agent. It said the statute would appear to require some evidence of that authorization.

Q: Could an authorized association authorize police to deliver an order to leave?
A: The statute quoted in the letter included a community association authorized as an owner's agent among those who could give written authorization to a law enforcement department to communicate such an order in a public-safety or welfare threat.

Q: Did the letter address trespass inside a building?
A: It distinguished trespass in a structure or conveyance under section 810.08 from trespass on other property under section 810.09. Its analysis of association authorization concerned the latter statute.

Background and statutory framework

Representative Kreegel asked about the 2007 amendment to section 810.09(3). The letter described earlier law on agents authorized by a property owner, including State v. Dye, then quoted the new language adding a community association authorized as an owner's agent. It concluded that proof of owner authorization mattered to the association's claimed authority.

Citations and references

The letter discussed sections 810.08 and 810.09, Florida Statutes, and referred to State v. Dye, 346 So. 2d 538 (Fla. 1977). The full statutory wording and source footnotes appear below.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/trespass-community-associations
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8293

Original opinion text

The Honorable Paige V. Kreegel

Representative, District 72

410 Taylor Street

Punta Gorda, Florida 33950

Dear Representative Kreegel:

You ask this office's opinion regarding the interpretation of section 810.09(3), Florida Statutes.

Sections 810.08 and 810.09, Florida Statutes, respectively define the offenses of trespass in a structure or conveyance and trespass on property other than a structure or conveyance. For example, section 810.09(1)(a), Florida Statutes, states that "[a] person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance . . . [a]s to which notice against entering or remaining is given, . . . commits the offense of trespass on property other than a structure or conveyance." Furthermore, section 810.09(2)(b), Florida Statutes, provides:

"If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person . . . the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083."

Thus, the statute permits an "authorized person" to "stand in the shoes of" the owner and order a trespasser to leave. In considering the interpretation of the term "authorized person" for purposes of section 810.09, Florida Statutes, the Supreme Court of Florida in State v. Dye,[1] stated:

"'Common understanding' dictates that the phrase 'other authorized person' is to be read in light of the preceding phrase 'owner of the premises' . . . . In regard to private land, an 'authorized person' is one who receives either express or implied authorization from the owner."

During the 2000 legislative session, section 810.09, Florida Statutes, was amended to provide a statutory definition of the term "authorized person."[2] An examination of the legislative history indicates that the definition was added to address a 1990 opinion of this office that stated there was no authority to pre-authorize on-duty police officers to act as a private landowner's agent in warning individuals to leave the private landowner's property.[3]

During the 2007 legislative session, the definition of "authorized person" as used in section 810.09, Florida Statutes, was again amended.[4] As amended, section 810.09(3) provides:

"As used in this section, the term "authorized person" or "person authorized" means any owner, or his or her agent, or a community association authorized as an agent for the owner, or any law enforcement officer whose department has received written authorization from the owner, his or her agent, or a community association authorized as an agent for the owner, to communicate an order to leave the property in the case of a threat to public safety or welfare."

The above italicized language was added during the 2007 session. You ask whether a community association may act on behalf of a private landowner to warn individuals to leave the private landowner's property or to authorize law enforcement to communicate such an order.

While the definition of "authorized person" now clearly includes a community association within its terms, the statute requires that such an association be "authorized as an agent for the owner." Thus, the statute would appear to require some evidence that the association has received authorization from the owner to act on his or her behalf.

I trust that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t

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[1] 346 So. 2d 538, 541-542 (Fla. 1977).

[2] Section 5, Ch. 2000-369, Laws of Fla., defined the term "authorized person" or "person authorized" to mean "any owner, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner, or his or her agent, to communicate an order to leave the property in the case of a threat to public safety or welfare."

[3] See Op. Att'y Gen. Op. 90-08 (1990) (on-duty police officers may not be pre-authorized to act as the agents of a private landowner for the purpose of communicating to an alleged trespasser an order to leave the private property pursuant to s. 810.09[2][b], F.S., although there may be instances where there is a threat to public safety and welfare and it is in the public's interest to permit a law enforcement officer to order, on behalf of a landowner, an alleged trespasser to leave the property).

[4] House Bill 1185, enacted as Ch. 07-123, Laws of Florida. The act became effective July 1, 2007.