Florida Real Estate Litigation – Easements under Florida Law

At its most basic, an easement is a property interest in real property (land) that allows the easement holder to use another’s property for a limited use. For example, imagine you are the owner of property A, which adjoins property B, as well as a public road. The owner of property B cannot reach the public road without crossing your property. In this case a court would likely find an easement of necessity by which people who wish to egress, ingress, or regress would be able to cross your property without being liable for trespass. An easement is considered an encumbrance on the land, in that it limits the way in which a landowner may use his land (i.e., absent an easement or other type of encumbrance a landowner normally has an unlimited right to exclude other from his land). Florida has codified common law easements in Title XL, Chapter 704 of the Florida Statutes. A link can be found here.

In Florida, an easement is usually expressly granted by the title-holding landowner by means of a written agreement, deed, or deed reservation. Easements by implication are found by courts in situations where the property has been traditionally or historically used in a certain way. Another example of an implied easement is one where the local authorities or private service provider may enter your property to install or maintain a public service – for example, your local sewer or electrical company. The easement is legally justified by the fact that the provision and maintenance of the service is statutorily mandated, and as such, there is an implication that the provider can enter property to provide such maintenance.

Two other types of easements are available under Florida law: prescriptive easements and conservation easements. A prescriptive easement is similar to the doctrine of adverse possession, by which one can gain rights to a property by occupying, provided that certain conditions are met. For a court to find a prescriptive easement, the party seeking the easement must show (1) actual, continuous, and uninterrupted use (not possession) for twenty years; (2) use, under a claim of right, in conflict with the landowners use; and (3), knowledge of the landowner, or use so open, notorious, visible, and uninterrupted that knowledge is imputed the landowner. A conservation easement is an easement created by parties expressly to limit the further development of a property. Generally, such easements are acquired by the government or a charitable organization to preserve the historical or cultural use and nature of a parcel of land.

Importantly, easements are limited in scope, and there are legal protections for both the landowner subject to the easement and the party benefitting from the easement. If you or someone you know is currently is a dispute with a neighbor or other party regarding the use of land, contact one of our South Florida real estate litigation attorneys today at (954)-779-7009. We have an experienced team of real estate lawyers ready to fight for your rights and strive for the best possible outcome of your real estate dispute.