Aug 1

Easements: Everything You Didn’t Want to Know, But Should Know

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August 2018

THE BARNES WALKER EDUCATIONAL SERIES
proudly presents:

Easements:
Everything You Didn’t Want to Know,
But Should Know

Most Realtors®, owners, and land managers know about the conveyance of title to property by deeds. However, there is another very important interest in land, which, while it does not include ownership or title to the land, gives important rights. This interest in land is called an “easement.”

A. What is an easement?

An easement is the legal right of a non-owner to use a specific part of another person’s land for a specific purpose.

B. What are the purposes and benefits of easements?

Easements are used to provide non-owners with rights of ingress, egress, utilities, and drainage over a specific portion of another’s land. Ingress and egress are terms for the easement right to travel to and from a property over the lands of another – they provide pedestrian and/or vehicular access. Utilities include electric power, telephone, cable television, internet, natural gas, water, wastewater, reclaimed water, and sewer services. Purchasing easement rights can be cheaper than purchasing title or ownership to the land itself. With all of Florida being relatively low land, and having a substantial rainy season, drainage easements are also important for the control of water. In addition to the benefit of these services, holders of easements do not have to pay real estate taxes on easements.

In subdivisions, easements in the subdivision’s declaration of protective covenants are what provide homeowners with the rights to use the subdivision’s common areas – parks, clubhouses, pools, playgrounds, tennis courts, walking paths, horse trails, private roads, etc.

C. Why are easements needed?

Often, easements are created for all of the preceding purposes – ingress, egress, utilities, and drainage – but often their most important purpose is for ingress and egress. The need for ingress and egress comes when a parcel of land does not adjoin a public, government-owned roadway, i.e., there is another property owned by another party between the subject parcel and the road. Therefore, buyers of homes and other land should always condition their purchase upon the property having ingress and egress to a public road, whether by virtue of the property adjoining a public road or by virtue of an easement connecting the property to a public road. (All of the contracts created by the Florida Realtors® – the association of Florida real estate agents – and The Florida Bar – the association of Florida lawyers – have this requirement preprinted in them.)

How can a buyer be assured of having such access? A buyer should always have the property being purchased surveyed prior to closing on that purchase. To have access without an easement, at least one boundary of the property has to coincide exactly, without gap or deviation, with the edge of a roadway, known as the right-of-way line. In other words, one boundary of the parcel and the right-of-way line have to lie on top of one another, at least for a part of the distances of the boundary and right-of-way lines. If a boundary line of the property being purchased and a right-of-way line do not coincide, the buyer needs to be certain that the property being purchased has an easement giving the buyer the legal right to cross over whatever property lies between the property being purchased and the public road. Otherwise, the owner of the intervening property could erect a fence to prevent the buyer from accessing the buyer’s property. Of course, if the buyer, as normal, plans to live on the property being purchased, that ingress and egress easement should also include the right to have utility lines and pipes, and perhaps drainage swales (ditches) cross over the land upon which the easement lies.

Without a documented easement, land that does not have access to a public road loses a tremendous portion of its value, since being inaccessible, it is not usable. Even if a property has access to a public road, it still may be very important to have another type of access. For example, properties across the road from a private beach, which beach does not have a nearby public access way, will have much less value than properties which have an access easement across the privately-owned, beachfront property on the other side of the road.

Easements can also be used to remedy encroachments, i.e., when a structure or other improvement on one property intrudes over a boundary line onto another person’s property. The owner of the property onto which a neighbor’s building, a fence, the eaves of a building, etc., encroaches may not wish to sell to his or her neighbor the portion of his or her property encroached upon, but may be willing to sell them an easement to allow them to use that portion of the property for the encroaching structure. In fact, sometimes because of zoning or building code requirements, the owner of the encroached-upon property cannot sell any portion of his or her property because it would make his or her property undersized for building purposes, so an easement is the only solution to the encroachment, other than tearing down the encroaching structure. (In this situation, a setback variance would also typically have to be obtained to rectify the encroachment.)

D. What are the two major types of easements?

The two major types of easements are appurtenant easements and easements in gross. Both types of easements can be used for all of the aforementioned uses – ingress, egress, utilities and drainage.

1. Appurtenant Easements.

These easements exist for the benefit of adjoining land – a perfect example of which is an ingress, egress, utilities, and drainage easement that crosses over a parcel of land that separates the property being benefitted by the easement from a public road. Appurtenant easements, unless expressly stated otherwise, are automatically conveyed with the land they benefit when the land is sold or otherwise transferred. They are said to “run with the land.” Thus, appurtenant easements do not have to be mentioned in the deed that conveys the lands they benefit, although it is a better practice to do so. The property which is benefitted by the easement, and for which the easement was created, is called the “dominant estate.” The parcel over which an easement runs is known as the “servient estate.” The sale of the servient estate does not terminate the appurtenant easement, despite the deed conveying the servient estate not mentioning the easement.

2. Easements in Gross.

These easements are intended to benefit a particular person, which could be an individual or a company. A perfect example of an easement in gross is an easement given to a utility company by a county or state to run electric, telephone, or internet transmission lines. Such an easement is not intended to benefit a piece of property – the utility company may not own any nearby lands. Instead, the easement is intended to benefit the utility company. Easements in gross can be given to a particular individual whom a landowner likes or wishes to help (but the landowner does not want to benefit an unfamiliar heir of, or unknown buyer from, the particular individual). An easement in gross is used rather than an appurtenant easement because, when the individual being benefitted by the easement dies, moves away, or otherwise does not need the easement, the landowner wants the easement to terminate. Therefore, easements in gross do not run with the land, even if the person being benefitted by the easement in gross owned adjoining land to that of the landowner who gave the easement. As such, easements in gross have servient estates, i.e., the parcel over which the easement runs, but not dominant estates, since they are not for the benefit of particular properties. Similar to appurtenant easements, the sale of the servient estate does not terminate the easement in gross, despite the deed conveying the servient estate not mentioning the easement.

E. How are easements normally created?

Most commonly, easements are created in documents. They can be created in deeds, easement agreements, subdivision declarations, and condominium declarations, all of which are recorded in the land records (the “Public Records”), just like deeds and mortgages. The better practice is to create an easement using an agreement or declaration, rather than a deed, because easements created in deeds typically do not adequately address all of the issues pertaining to easements. Whatever document is used, it must be executed before two witnesses and a notary public.

Another common mistake made when creating easements in deeds is the improper use of the term “subject to.” The same owner may own two parcels of land – one in front adjoining a public road, and another parcel behind the parcel that adjoins the road, the latter parcel therefore not adjoining the road. If the owner sells the front parcel adjoining the road, the owner should “reserve” back, in the deed to the buyer, an ingress, egress, drainage, and utilities easement for the benefit of the owner’s remaining parcel that does not adjoin the public road. Often, however, the drafter of the deed follows the “subject to” language in the survey (which is correct as to the survey) and conveys the front parcel adjoining the road “subject to” an easement for the back parcel. Florida courts have held that the term “subject to” does not create an easement. The easement needs to be created by “reserving back” the easement for the back parcel in the deed for the front parcel. This problem does not occur if the landowner by chance sells the back parcel first with a deed that describes the parcel and then states the parcel is “together with” the easement over the front parcel. If that deed for the back parcel is recorded first, the easement is created, and when the front parcel adjoining the road is sold, its legal description “subject to” the back parcel’s easement is correct.

As mentioned above, when properties adjoin each other, easements are often created when the adjoining properties are sold to separate buyers as a part of the sales transactions, whether the adjoining properties be two properties or a large tract of land that is being subdivided into lots or condominimized and sold to different buyers. In all other cases, however, where an easement is sought from a landowner, the easement must typically be purchased from the owner of the parcel that is to be the servient estate, i.e., the parcel over which the easement will run.

F. What are the different characteristics of easements?

1. Specific Purposes and Specific Locations.

As discussed above, an easement is given for a specific purpose – rights of ingress, egress, utilities, drainage, etc. In addition, nearly all easement agreements, deeds, and declarations require those rights to be exercised only in a specific location on the servient estate – for example, “the north 50 feet” or “the south 25 feet” of the servient estate. The easement rights cannot be exercised over the entire servient estate – just in the area described within the easement.

2. Easement Holder Rights vs. the Rights of the Servient Estate Owner.

Thus far, the rights of the easement holders to use, for various purposes, the easement over the servient estate, have been discussed. What about the rights of the owner of the servient estate over which the easement runs? The owner has a right to use the easement area just like any other part of the owner’s property as long as the owner does not materially interfere with the easement holder’s use of the easement. For example, as long as an ingress and egress easement does not state that the easement holder has unobstructed access or an “open way,” the owner of the servient estate may put in fences and gates over the easement area. However, the owner would likely have to install automatic openers, operable by the easement holder, so as not to materially burden, hinder, or delay the passage of the easement holder, since locked gates, even if the easement holder has keys, are often deemed by courts to overly burden and delay the easement holder’s passage.

On the other hand, the easement holder cannot “increase the burden” or increase or expand the use of the easement on the servient estate beyond what was contemplated at the time the easement was created. For example, if an owner of lands used for agricultural purposes was given an ingress and egress easement by an adjoining landowner to a public road, but then the owner of that dominant estate (the benefitted agricultural lands) decided to subdivide the lands into a large subdivision, that subdividing would greatly increase the usage or burden of the ingress and egress easement upon the servient estate over which it ran, and the servient estate owner could obtain an injunction to prevent that increased usage.

In addition, an easement holder cannot extend the right to other adjoining landowners to “piggy-back” on and use the easement holder’s easement. Those adjoining landowners would have to obtain, at their own cost, their own easements from the owner of the servient estate over which the easement runs.

3. Maintenance and Repair.

The right to construct, maintain, and repair the easement in conjunction with the usage rights given is implied and does not have to be expressly stated in the easement agreement. Thus, an easement holder may construct and improve a driveway in the area of an ingress and egress easement and can likewise install power lines and water and sewer pipes in the area of a utility easement, unless the easement has specific restrictions or limitations in these regards. Moreover, unless the easement states otherwise, the easement holder is responsible for paying the costs of all construction, maintenance, and repair of the easement area’s improvements, even though the owner of the servient estate uses the driveway or connects into the utility lines (as long as the owner pays the utility company for the utility services used by the owner). The owner of the servient estate over which the easement runs has no duty or obligation to maintain or repair the easement’s improvements.

4. Other Characteristics.

Most appurtenant easements are perpetual and continue forever. Easements in gross, however, unless they are utility easements given to companies that provide such services, typically only last as long as the individual benefited by them is alive or otherwise uses the easement. However, all easements can be limited to a certain period of time, according to their terms.

Most all easements are non-exclusive, i.e., the owner of the servient estate over which they run reserves the right to give other persons easements for the same or different purposes over the same area at the same time. In other words, you can think of non-exclusive easements as “stackable” on top of each other, with different easement holders being able to use the same area at the same time for different or similar purposes.

5. Affirmative vs. Negative Easements.

Thus far, all of the easements which we have discussed are affirmative easements. They give the easement holder an affirmative right – the right to travel over the easement or the right to have utilities or swales on the easement. In areas of the country with high density high rises or expensive beachfront properties, there are easements which give the easement holder view, solar, light, and air rights over and across the properties of others. In these areas, an aesthetic view overlooking a city skyline or a beach is of great intrinsic and extrinsic value, so a seller of an adjoining property in these areas may wish to protect his or her view from being obstructed by the new building that will be constructed by the buyer of the property being sold. Similarly, in the downtown areas of large metropolitan cities, skyscrapers can significantly obstruct sunlight or the free flow of air, and in this era in which solar power is increasingly desired and used, solar, sunlight, and air easements are being sought and given. View, solar, sunlight, and air easements are often referred to as “negative easements,” since they prevent the owners of the servient estates over which the easements run from constructing buildings or other structures that would obscure views, sunlight, or the movement of air. Given the location of the areas in which these easements are found, they can be extremely expensive to purchase.

G. But what if you need, but do not have, a written easement?

If one needs an easement but does not have a documented, written easement, and one cannot afford one or the owner of the servient estate does not want to give one, there are three types of easements that may be possibly obtained. These easements are known as common law ways of necessity, statutory ways of necessity, and prescriptive easements. A person seeking any of these easements must bring a legal action in court and will have the burden of proving the requirements for establishing such an easement have been met.

1. Common Law Ways of Necessity. A common law way of necessity is an easement which arises when an owner sells a portion of his or her land and either (a) the portion sold has no practical access to a public road except over the remaining lands of the seller, or (b) the remaining lands retained by the seller have no practical access to a public road except over the land sold. It is said that the parcel which does not have access is “landlocked.” Even if there is physical access, a parcel is considered landlocked if the access is not reasonable and practicable. For example, if the access is not available during a large part of the year due to flooding, the parcel is considered to be landlocked. Either the first or any subsequent owner of a landlocked parcel can apply to a court to have the common law way of necessity recognized. Not only is this doctrine a part of “the common law” (the law that the United States adopted or inherited from Great Britain when it declared its independence), but now this doctrine is codified as Section 704.01(1) of the Florida Statutes. The common law way of necessity easement is given to the owner of the landlocked parcel always over the other parcel which has access to a public road and which previously had a common owner with the landlocked parcel. The way of necessity easement is recognized for the benefit of the landlocked parcel only if (a) the landlocked parcel’s owner owns no other reasonable and practicable way of ingress and egress, and (b) it is reasonably necessary for the beneficial use or enjoyment of the landlocked parcel. The recipient of the common law way of necessity does not have to pay for the easement.

2. Statutory Ways of Necessity. A statutory way of necessity easement exists pursuant to Florida Statutes Section 704.01(2) if a parcel is landlocked and a prior common owner of that parcel and an adjoining parcel with access to a public road cannot be found. However, a statutory way of necessity easement is recognized by a court only if the landlocked parcel is used, or is desired to be used, for one of the following purposes: (a) as a dwelling, (b) for farming, ranching, or other agricultural purposes, or (c) for timber raising or cutting. A court can give a statutory way of necessity easement over any adjoining property, as long as it is the nearest practicable route to a public road. As with a common law way of necessity easement, even if there is physical access, a parcel is considered landlocked if the access is not reasonable and practicable. Unlike a common law way of necessity easement, the owner of the servient estate over which the statutory way of necessity easement runs must be compensated for the easement encumbering his or her property. Also, unlike a common law way of necessity, statutory ways of necessity can also be for utility purposes (again, however, this right must be purchased).

3. Prescriptive Easements. Prescriptive easements are recognized by a court when a person and his or her predecessors have (a) actually, continuously used without interruption, (b) a specific area of land owned by another, (c) for 20 years, with (d) the actual knowledge of that owner, or in such an open, notorious, and visible way that the owner must have or should have known of the use, plus (e) that use has been adverse to the owner, i.e., without the owner’s permission, or at least inconsistent with the owner’s rights, and (f) the owner has taken no legal action to prevent the use. The owner of the servient estate over which the prescriptive easement is recognized is not compensated for the easement, just like an owner whose land is adversely possessed by another.

H. How are easements typically terminated?

1. By the Easement Holder. The easement holder may unilaterally terminate the easement by executing, delivering, and recording a written release of the easement or a quit claim deed conveying the easement back to the owner of the servient estate.

2. By Mutual Agreement. If both the easement holder and the owner of the servient estate agree, they may execute and record a termination of the easement, but once again, it should contain a written release of the easement or a quit claim deed by the easement holder conveying the easement back to the owner of the servient estate.

3. By the Doctrine of Merger. When one of the owners of either the dominant estate which an easement benefits or the servient estate over which the easement runs becomes the owner of both properties, then there is a “unity of the two titles,” and since an owner does not need an easement over the owner’s own property, according to Florida law, the easement merges out of existence and into the owner’s title. A subsequent sale of one of the two parcels does not revive an easement that has merged out of existence.

If you have any questions regarding easements, please do not hesitate to call us at 941-741-8224 or e-mail us (just use the first letter of our first name followed by our last name at BarnesWalker.com). As always, we will answer your questions at no charge.

Important Note: The information contained in the preceding Barnes Walker Educational Series article is summary in nature, does not cover all aspects of the law as it pertains to public beaches, and is sent for educational purposes only to you as a client or a member of the Realtor® Association of Sarasota and Manatee, Inc., of which we are a proud affiliate member. This article should not be considered as legal advice for your or a client’s situation, if any, nor is it intended as specific or detailed advice, as we do not have any information specific to your or a client’s circumstances. Further, the preceding article is not intended to be an all-inclusive discussion of public beaches, but a guide to the same, and there may be other matters not described in the article that may impact your or a client’s particular situation. Therefore, always seek legal advice regarding your or a client’s unique circumstances. Finally, this article is intended as a public service and is not a solicitation seeking legal employment of our firm by you or any clients.