If you are thinking of buying property in Florida, whether residential or commercial, it’s important to understand what are your rights with easements and how they may affect you as a property owner.

What is an Easement?

Generally speaking, an easement is a right to go onto someone else’s land without having any ownership of it.  It is also called having a nonpossessory interest in another individual’s property.  In layman’s terms, it’s the right to trespass.  How they can use your property depends on the type of easement.

Easements are usually created by a transfer in a deed or some other written document, such as a Will or contract.  They can also be imposed through court order or adverse possession.

Types of Easements

There are a number of types of easements, including:

Easement Appurtenant

Appurtenant means that something legally accompanies something else.  It “runs with the land”.  In other words, it’s permanent and survives changes in ownership.  Landowners have a legal right to ingress and egress their own property, which cannot be inhibited by another entity.

For instance, if Bob’s home (servient estate) is located behind Frank’s home (dominant estate), making Frank’s driveway the only means of access that Bob has to their legally owned home, then the easement appurtenant would specify that Bob has permission to use Frank’s driveway to access their home.  This would also extend to any new owners who purchase Bob’s property in the future.

Easement in Gross

An easement in gross is a personal easement that does not transfer with the property.  This easement possesses a right to an individual or entity more than the property.  A new owner can attempt to create a new easement in gross but granting it is not guaranteed.

Public Easements

This type of easement allows residents of an area to use a limited section of a person’s property, such as right-of-way access to main roads or a public beach that would be otherwise inaccessible.  It is against the law to obstruct the public’s fair access to no-privately owned areas under the terms of a public easement.

Party Easement

This type of written agreement is created between parties concerning a common boundary, like a shared wall, fence, or driveway.

Prescriptive Easement

If an individual or entity has openly and continuously used another’s property for several years without the owner’s permission, it may be possible to acquire a prescriptive easement that would make that access permanent.  This is why it is not wise to allow a neighbor or the public to use part of your property regularly without some sort of written agreement.  They may be able to obtain a prescriptive easement which could affect future owners of your property.

Rights and Remedies Under an Easement

An easement holder generally has the right to do whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted, as long as the easement holder does not place an unreasonable burden on the servient land.  However, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder’s use of the easement.

What constitutes an undue burden?  That really depends on the facts of each situation.  Let’s say a court determines that a servient estate is unduly burdened by unreasonable use of the easement.  The court could award the servient estate monetary damages or, in some cases, terminate the easement altogether. 

On the other hand, remedies exist for interference by the servient owner.  Interference with an easement can be considered trespassing and courts can order the removal of the obstruction.  If the interference causes a devaluation of the dominant estate, the court could award compensatory damages to the easement holder.

Termination of Easements

Although most easements are usually permanent, it may be possible to terminate them in a variety of ways.  For instance, some easements are only for temporary construction sites.  These can be terminated once the work is completed.  Other times, one owner will buy the other owner out which can terminate the easement.  Under certain circumstances, a misuse or sale of a servient estate could terminate the easement.  An easement can also be extinguished by the performance of an act that is incompatible with the nature of the easement’s nature or exercise.

Disputes with Easements

One of the most common disputes with easements involves boundary line conflicts when one of the parties decides to make improvements by adding a wall, fence, or some other type of modification that encroaches on the adjoining land.  Other types of easement disputes include:

The scope of the use of the easement

Restricting access to the easement

Relocation of the easement

Determining the exact location and boundaries of the easement

Overuse of the easement

Using the easement for another purpose other than crossing the land

Transfer of the easement

Whether a legal easement was created

Making Sense of Easements

While some easements work well for all parties, others can also encumber a property, which makes it difficult for the property owner to transfer the land by sale or lease to a new owner.  Because of their nonpossessory nature, easements can create an unusual set of considerations when creating, interpreting, and implementing an easement.  This is why it is important to consult with an experienced attorney when dealing with issues relating to easements.

I’m Rob Robinson, and I understand that easement disputes can be frustrating and time-consuming.  There are many factors to consider when examining easement law, such as the property’s history, neighborhood, and value.  I can draft, review and dispute easement and right-of-way agreements in order to help you prevent more complicated and expensive issues in the future.

I may also be able to resolve the dispute through mediation and negotiation without the necessity of a court action.  I will always attempt to resolve easement disputes in the most effective and efficient manner possible.  If the conflict cannot be resolved through mediation, I will file a lawsuit and argue the matter in court if it is in the best interest of my client.

If you have any questions regarding easement or right-of-way issues, please contact my office without delay.  With over 30 years of practicing law in Florida, I will use all of my expertise and experience to fight for your cause.