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Easement Disputes: What Type of Easement is at Issue?

Easements

If you’re considering purchasing residential or commercial property in Florida you are probably already aware that real estate transactions can be hugely complex. This already complicated process becomes even more involved when there is an existing easement on the property that is being sold. An “easement” is simply the legal right to use the real property of another person for a specific purpose. While this definition is pretty straight forward, you should be aware that easement disputes are common, can be very involved, and often pop up when property encumbered by an easement is being sold. When engaged in an easement dispute it is advisable to consult with a local real estate attorney who can determine which type of easement is at issue and explain what your rights and responsibilities are under such an easement.

Easements by Necessity

Some legal easements can exist even though they are not written down. For example, easements by necessity are implied by law and can exist sometimes if an easement is necessary to support the public policy agenda of promoting the productive use of property. For example, if a landowner cannot access his or her property except by crossing over a neighbor’s land, then there is likely an implied easement by necessity across the neighbor’s land in favor of the landowner as the easement is necessary and for a legitimate purpose.

Prescriptive Easements

Prescriptive easements can only be obtained via adverse possession and occur when someone trespasses over another person’s land for a particular purpose and does so openly and notoriously for a set period of time. In Florida, a trespasser can acquire a prescriptive easement if he or she meets the following requirements:

  • The trespasser made actual use of the land;
  • The use has been continuous and uninterrupted for at least 20 years;
  • The owner knew of the use, or the use was so open, notorious, and visible that knowledge of the use is imputed to the owner;
  • The use relates to a certain limited and defined area of land; and
  • The use was adverse to the owner.

For example, the neighbor may be able to acquire a prescriptive easement across the landowner’s property if the neighbor has been using a shortcut to cross the landowner’s property in order to access the beach and meets the five requirements listed above.

Private Easements

A private easement is an easement that a property owner grants to a specific person, or to a limited number of people. These easements are often sold and recorded in the servient property’s title. The written easement should specifically state which uses are permitted, however, disputes still arise over private easements. Examples of private easements may include solar access or the right to use a path or driveway.

Utility Easements

A utility easement entitles a particular utility company or city to use a specified piece of land in order to run and maintain electric, telephone, cable television, water, or sewer lines underground or overhead. These easements are very common and generally do not disturb the landowners very much on a day-to-day basis.

Need Legal Assistance?

If you are involved in an easement dispute in Florida, contact the experienced real estate attorneys at Kira Doyle Law today. Our knowledgeable attorneys have been practicing law in Florida for many years and would be happy to discuss the easement dispute that is plaguing you, set out a plan for resolving your issue, and if necessary represent you in court. Our St. Petersburg office can be reached by calling (727) 537-6818.