The value of property can be highly dependent on the rights—like easements and rights-of-way—that come along with it. For example, your property value will be affected by the extent of your ability to build on the property, or if a neighboring property owner has the right to drive through your property. These ancillary rights can be through licenses, covenants, easements, or rights-of-way. This article focuses on the latter two, easements and rights-of-way.
Easements are nonpossessory interests in real property. More simply, an easement is the right to use another’s property for a specific purpose. Rights-of-way are easements that specifically grant the holder the right to travel over another’s property. Therefore, all rights-of-way are easements, but not all easements are rights-of-way.
There are several types of easements. First, easements can be either appurtenant or in gross. Easements appurtenant are easements that benefit another parcel of property. Easements in gross are easements that benefit a person. See Dunes of Seagrove Owners Ass’n, Inc. v. Dunes of Seagrove Dev., Inc., 180 So. 3d 1209, 1211 (Fla. 1st DCA 2015) (“Florida recognizes easements in gross, which are mere personal interests in land that are not supported by a dominant estate.”).
Second, easements can be affirmative or negative. An affirmative easement gives the owner of the easement the right to use the land of another in a particular way. A negative easement prevents an owner of land subject to the easement from using his or her land in a particular way. However, negative easements are disfavored by the law. Wahrendorff v. Moore, 93 So. 2d 720, 722 (Fla. 1957) (en banc) (“[T]he law favors the free use of real estate and restrictions on usage will customarily be strictly construed.”); see also Kilgore v. Killearn Homes Ass’n, Inc., 676 So. 2d 4, 7 (Fla. 1st DCA 1996).
Third, easements can be express or implied. An express easement can be created by the execution of a deed or reservation recorded in the county’s public records. An express easement can also be created by way of dedication and acceptance. Modern, Inc. v. Fla., No. 603-CV-718-ORL-31KRS, 2008 WL 239148, at *5 (M.D. Fla. Jan. 28, 2008), aff’d, 308 F. App’x 330 (11th Cir. 2009). Either way, express easements must be in writing. Dupont v. Whiteside, 721 So. 2d 1259, 1263 (Fla. 5th DCA 1998).
An implied easement, on the other hand, is created through the parties’ actions or inactions. There are generally two types of implied easements. First, easements by necessity, and second, easements by prescription. Easements by necessity are created when land is cut off from any reasonable route of egress or ingress. A common law easement by necessity is created when an owner of land subdivides the parcel, cutting off the access of one of the parcels to any roads. Fla. Stat. § 704.01(1). When the Florida Legislature codified this common law right, however, it expanded its scope. Now, what is known as a statutory way of necessity is created by necessity whether or not there was ever common ownership of the neighboring parcels. Fla. Stat. § 704.01(2).
Second, easements by prescription are created when a party uses the land of another (1) continuously for twenty years, (2) the use was related to a limited and defined area of land, (3) either the owner had actual knowledge of the use or the use was so open and notorious that such knowledge must be imputed to the owner, and (4) the use has been adverse. Stackman v. Pope, 28 So. 3d 131, 133 (Fla. 5th DCA 2010).
The scope of an easement depends primarily on the way that it was created. The scope of an express easement is defined by the deed or reservation that created it. Thus, any dispute that arises from the easement holder’s use will be resolved by construing the language of the deed or reservation that creates the easement. BHB Development, Inc. v. Bonefish Yacht Club Homeowners Ass’n, Inc., 691 So. 2d 1174, 1176 (Fla. 3d DCA 1997).
The scope of an easement implied by necessity is defined by what was necessary when the easement was created. While an easement implied by necessity can expand in scope over time to ensure the beneficial use and enjoyment of the dominant parcel, the easement should be restricted to what is necessary so as not to encroach upon the servient estate. Holloway v. Gargano, 657 So. 2d 1231, 1232 (Fla. 3d DCA 1995). The scope of a prescriptive easement, on the other hand, is defined by the use during the prescriptive period. 28A C.J.S. Easements § 194; see also Sunnybrook Groves, Inc. v. Hicks, 113 So. 2d 239, 241 (Fla. 2d DCA 1959). Like easements by necessity, the scope of a prescriptive easement can also change over time but must be balanced against the burden imposed on the servient estate. 28A C.J.S. Easements § 194.
Easements implied by necessity only last as long as the necessity. Enzor v. Rasberry, 648 So. 2d 788, 792–93 (Fla. 1st DCA 1994). Thus, if a landowner acquires another practicable means of ingress and egress, or if the landowner acquires an adjoining lot with a practicable means of ingress and egress, the easement implied by necessity will terminated. Parham v. Reddick, 537 So. 2d 132, 135 (Fla. 1st DCA 1988).
In general, easements can be terminated in a variety of ways: through equitable estoppel, the expiration of an easement’s term, adverse possession, an agreement, tax deed sale, etc. An easement can also be terminated if the servient estate is sold to a bona fide purchaser without knowledge, actual or constructive, of the easement. Wise v. Quina, 174 So. 2d 590, 593–94 (Fla. 1st DCA 1965). For this reason, it is very important for the easement holder to promptly record an express easement in the official public records in the county where the property is located so as to provide constructive knowledge to the world of the existence of the easement.
Sometimes disputes arise regarding the use of an easement. While an easement carries with it, by implication, the right to do what is reasonably necessary for the full enjoyment of the easement, the easement is restricted to the purposes for which it was granted. Sinclair v. Clay Elec. Co-op, Inc., 584 So. 2d 1065, 1066 (Fla. 5th DCA 1991). For example, in one case, the Florida Supreme Court held that an easement for drainage could not later be used for installation of large-scale irrigation equipment. Crutchfield v. F.A. Sebring Realty Co., 69 So. 2d 328, 330 (Fla. 1954) (stating the rule that “all easements, whether acquired by user, express grant, dedication, or by implication from the circumstances of a particular transaction, that the burden of a right of way upon the servient estate must not be increased to any greater extent than reasonably necessary and contemplated at the time of initial acquisition”).
Further, while the property owner whose property is subject to the easement retains the right to use the land in any manner not inconsistent with the easement, the property owner cannot unreasonably interfere with the rights of the easement holder. For example, where an express easement provided for fifty feet wide access, the property owner could not install a wall over a portion of the easement, even though the easement holder still had twenty feet for access. See Diefenderfer v. Forest Park Springs, 599 So. 2d 1309, 1313 (Fla. 5th DCA 1992).
Where a dispute regarding an easement cannot be resolved, legal action can be brought to adjudicate the rights of the parties involved. The types of actions that may be able to be brought in court could include actions for injunctive relief to require compliance with the easement or to remove obstructions or take other actions regarding the easement, breach of contract for breach of express easements where damages may be available, declaratory judgment regarding the existence or scope of an easement, or quiet title regarding the existence or non-existence of an easement.
