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
There are two classifications of 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.
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:
Written Agreement – Where the parties have entered into a written
agreement that is vague or ambiguous, Florida courts will imply an
- 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:
- He had
actual, continuous, uninterrupted use of the claimed easement for 20
- 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;
- 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
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.