Florida Property Easements Can Cause Land Disputes


I’m Eric Lanigan with Lanigan and Lanigan
in Winter Park, Florida. I want to talk for a few minutes about easements and how they
can affect property rights and become a matter of a property dispute. First of all, what is an easement? An easement
is a right to use the land of another person for a specific purpose. So, it’s not ownership
of the land, but it is an ownership interest in land in that it is the right to use the
property for a specific purpose. Probably for the most common easement that
we see is a driveway easement where someone uses sort of the edge of their neighbours
property to come into their property. That’s a typical type of easement that we see. The most common easement is a written easement
which is very much like a deed where you layout the legal description and you layout the specifics
of the easement. For instance the right to ingress and egress an automobile over this
particular strip of land to enter and leave your property. The one thing really about the written easement
is you make sure that the legal description is right because somebody’s going to have
to carve out the legal description of the area over which the easement runs. You just
can’t use the overall property description. And certainly if you’re the owner of the property
and you’re granting an easement over your property, you don’t want the easement to be
over your entire property you want the easement to be over just that limited area of your
property necessary to fulfill the needs of the person seeking the easement. So, you want
to make sure the legal description is correct. Now the most disputed type of easement is
what we call a prescriptive easement, this is a situation where there has been no written
agreement as to a easement, and sometimes it might be called an implied easement. Basically, what happens here is the law imputes
an easement when certain conditions are met. When one party is actually using the property
of another for a specific purpose. And that the use is continuous. It doesn’t go on for
a year or two and then it stops and then maybe it picks up after three or four years. It’s
a continuous ongoing thing. Now that doesn’t mean every day but it does mean regular and
ongoing without any significant breaks in the pattern. And the use of the property must be readily
observable or so open that knowledge of it is imputed. For instance using the driveway
type of easement when you see the tire ruts in the field where the car has obviously gone
back and forth so many times that there is no grass growing there there’s just the tire
ruts, well, it’s pretty obvious what’s going on there. And you very often get into the oral testimony
of other people, about you know, Yes, Mr. Jones would drive back and forth from his
property to the street over this sort of driveway on a regular basis all the time. Now, back up for a moment I said the use must
be continuous. Every state will have a different time period that it must exist. You can’t
start using somebody’s property for a month and you suddenly have an easement. In fact,
to meet the criteria of a prescriptive easement in Florida it has to been an actual continuous
open use of the property for 20 years. So, the law does not lightly impose a prescriptive
easement. Now prescriptive easements are most common
in rural areas where, you know Farmer Smith is driving over the edge of Farmer Jones’s
property to get back to his pastureland things like that. But we have seen them especially
in commercial properties in densely populated areas. If you’re buying a piece of land either out
in the country or a commercial property in the city you can’t rely solely on the public
records to determine if there are easements because obviously prescriptive easements are
not going to be there. You can ask the seller to disclose in writing any prescriptive easements
that he knows of or which might be claimed which might meet that general criteria. If
you’re uncertain sometimes what you want to do is just ask the adjoining landowners. I had a client many years ago who was buying
a little commercial property to put in an insurance office. You know it was a very tight
piece of property. And I actually went and drove by the property and there was a little
driveway that ran between the two buildings. This building which was right on the corner
and the building next door. And so it was obvious that both of the buildings were using
this driveway and so the question was well who owns this land and if the other guy owns
it which it turned out that he did what’s the arrangement as far as going over the property. So I literally just went next door and got
the owner and I said look so what’s the deal with the driveway between your buildings.
He gave me an earful right there about this guy had put this garage in the back of the
building next door and was coming in and out all the time and he was getting ready to put
up a wall to shut off the use of that driveway. So right away, we knew we had a problem. My
client ended up not buying that property because he would have never had access to the back
of his building as the existing owner had had because this had only been going on for
a few years. There was no prescriptive easement. And it would have been a real nightmare if
had he found all of these things out after he had purchased the property. So, don’t assume anything when you’re dealing
in the purchase of property. And don’t assume that because the title report comes back and
there’s no reference to any easements on the property or it lists maybe a utility easement
or something like that, don’t assume that there aren’t any. Make sure that the buyer has had to formally
make a disclosure as to whether or not he knows or has reason to believe that anybody
has or might claim an easement over his property. And then if need be, go knock on the door
next door and ask the people you know, are you using any part of the property next door
in and out or if there is a driveway that looks like or like a road rut in an unusual
place go ask the neighbors what’s the deal with that driveway? Who’s using that? So again don’t assume anything if you’re looking
at properties. Commercial property, rural property especially find out if you have any
prescriptive non-written easements. Again, I’m Eric Lanigan with Lanigan and Lanigan
attorneys, Winter Park, Florida.

One Reply to “Florida Property Easements Can Cause Land Disputes”

  1. The process sounds similar to the California prescriptive easement, yet I believe the law school has books on easement cases in United States. I view them from time to time just to get a good sound of mind on the title.

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