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.
If you would like to see the video “Florida Property Easements Can Cause Land Disputes” visit our Lanigan and Lanigan YouTube channel.
What is an Easement?
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 neighbors property to come into their property. That’s a typical type of easement that we see.
Written Easements
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.
Prescriptive Easements
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.
Florida Prescriptive Easements
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.
Ask for Easement Disclosures in Florida
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.
Title Report May Not Reflect Easements
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.
