Easements are a common phenomenon in Central Florida and are non-possessory benefits based in land ownership which give an individual or entity the right of use or enjoyment of another’s land for a special purpose not inconsistent with the general property rights of the owner. In Florida, an easement cannot exist between two pieces of land owned by the same person and include: (1) an easement in gross (i.e. utility company); (2) easement appurtenant (i.e. a friendly easement such as a cross-parking easement between two adjoining commercial property owners); (3) easement by way of necessity (i.e. a landlocked property); (4) easement by prescription (i.e. continual use for 20 years); (5) access easement (i.e. across gulf-front lots to allow neighboring owners beach access); (6) conservation easement; and (7) solar easement (i.e. for maintaining exposure of a solar energy device).

At J&J legal, we primarily encounter neighborly disputes between clients who are either the benefited neighbor trying to make improvements to the easement to further enjoy the easement or to the burdened owner endeavoring to make the easement as minimally intrusive as possible.   In Central Florida, this frequently arises in the context of a driveway easement where an individual uses a portion of his or her neighbor’s property to come into his or her own property. A driveway easement may arise pursuant to express agreement between the owners of the affected parcels of property, but it is also possible for a driveway easement to be implied or otherwise arise pursuant to applicable facts and circumstances despite the absence of an express easement agreement.

Easements by Way of Necessity

Easements by way of necessity are not based upon an express agreement and existed under common law.   They are also recognized by statute in Florida. See Fla. Stat. § 704.01 Because easements by way of necessity are not typically recorded or contained within the legal description of the property, a title examiner may not document the existence of the easement on a title insurance commitment unless the affected properties have been thoroughly inspected or a survey of the property has been meticulously reviewed. For this reason, we advise commercial and residential clients to order a survey, conduct an in-person inspection of the property prior to purchasing, and ask the seller to disclose any prescriptive easements in writing. Talking to the owners of the subject and/or surrounding property can also clear up any uncertainty regarding the existence of any unrecorded easements.

Florida Statute § 704.01 provides for two distinct easements by way of necessity—(1) arising under common law for a landlocked property; and (2) arising under “public policy, convenience, and necessity,” exclusive of any common law right. The statutory way of necessity in subsection two has only been applicable to land within a municipality since 2005.   Specifically, subsection two gives rise to an easement for use by the owner or tenant of “shut-off or hemmed-in lands,” or anyone on their behalf, for ingress, egress, and utility services over, under, and upon the lands that lie between those lands and a public or private road by means of the nearest practical route. However, in order for owners of “landlocked” land to avail himself or herself of the statutory way of necessity, his or her land must “be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes[.]” Although an easement by way of necessity should be reasonable in length and width and free from permanent obstructions, the reasonableness of a particular easement will vary depending on the unique circumstances and properties involved.

To discuss your boundary dispute or easement issue with one of our experienced real estate attorneys, contact us today.

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