Question 1

How is a prescriptive easement claim filed in Florida?

Accepted Answer

Filing: the claimant files a quiet title action or declaratory judgment action in the circuit court of the county where the property is located. The complaint must: identify the property (by legal description and address), describe the nature and extent of the use (what the claimant has been doing on the property), prove the elements (actual, open, continuous, adverse use for 20 years), and request the court to declare the easement. The claimant should also: record a lis pendens (notice of pending litigation) to put prospective buyers on notice. The burden of proof is on the claimant: clear and convincing evidence.

Question 2

What defenses are available against a Florida prescriptive easement claim?

Accepted Answer

Defenses: permission (the owner granted permission or a license for the use, negating the "adverse" element), interruption (the owner interrupted the continuous use, resetting the 20-year clock), statute of limitations not met (the use has not been continuous for 20 years), lack of open and notorious use (the use was hidden or secret), and the Marketable Record Title Act (Section 712.01: the MRTA may extinguish old prescriptive easement claims not preserved by a recorded notice). The property owner bears the burden of proving these defenses.

Question 3

What is the scope of a Florida prescriptive easement?

Accepted Answer

Scope: the prescriptive easement is limited to: the type of use that was made during the prescriptive period (if the claimant used a path for pedestrian access, the easement is for pedestrian access only; the claimant cannot expand it to vehicular access), the location of the use (the easement is limited to the specific area that was used), and the intensity of the use (the claimant cannot significantly increase the intensity of use beyond what was established during the prescriptive period). Any expansion beyond the prescriptive scope requires: a new grant from the property owner, or a new 20-year period of adverse use for the expanded scope.

Prescriptive Easement Claim

Prescriptive Easement Claims in Florida

Filing

Defenses

Scope

Related Terms

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