Florida Easement Law

An easement is a right to use the land of another for a specific purpose.  Once an easement has been granted, the grantor cannot interfere with the grantee's use of the easement.

Easement Classifications

There are two classifications of easements:

• Easements Appurtenant – An easement appurtenant benefits an adjoining piece of land and continues regardless of the ownership of the land.  Because an easement appurtenant benefits a specific piece of land, there must be a dominant tenement and a servient tenement. The property which benefits from the easement is known as the dominant tenement; the property that is burdened by the easement is known as the servient tenement.
• Easements In Gross – An easement in gross benefits a particular individual or business entity.  Generally, easements in gross cannot be sold, assigned, or inherited.  A common example of an easement in gross is the utility easement.

Creation of Easements

Under Florida law, because easements involve real property, they must be in writing.  Such easements are known as express easements.

Furthermore, under Florida law, there are only two instances where an easement will be implied:

1. Ambiguous Written Agreement – Where the parties have entered into a written agreement that is vague or ambiguous, Florida courts will imply an easement; and
2. Facts of the Situation – Florida courts will find that an implied easement exists where the facts surrounding the transaction demonstrate the necessity of an easement.

Prescription Easements in Florida

Florida law also recognizes easements by prescription.  To establish an easement by prescription, a claimant must satisfy a four prong test by proving that:

1. He had actual, continuous, uninterrupted use of the claimed easement for 20 years;
2. His use was adverse to that of the owner of the land and under claim of right either with the actual knowledge of the owner or was so open, notorious, and visible that knowledge of its use is imputed to the owner;
3. His use of the property is inconsistent with the owner's use and enjoyment of the property and is not with the owner's permission or consent; and
4. His use is limited to a certain limited and defined area of land or, if for a right-of-way, that the use is of a definite route with a reasonably certain width, length, and destination.

Easement Issues and Disputes

Easement issues frequently arise in relation to boundary line disputes involving improvements.  When a property owner erects a fence, wall, driveway, or other improvement that encroaches on adjoining land, he may be required to remove the improvements or to pay the landowner for an easement over his property.

Easement issues may also arise between the easement holder and the grantor.  If the easement holder misuses the easement, he may be liable to the landowner.  Likewise, if the grantor interferes with the easement holder's use of the easement, he may be liable to the easement holder.

Help from a Real Estate Attorney in Florida

The best way to avoid easement issues is to hire an experienced real estate attorney.  A real estate attorney can assist you in the review of surveys and title reports to ascertain the boundary lines and other important facts about the status of the property.  If you are already involved in a dispute, a real estate attorney will evaluate your case and recommend an appropriate course of action.