No Easy Answer

Tuesday, August 27, 2013 · News

As of 2013, Florida is home to roughly 20,000,0001 people. To house those 20,000,000 people, Florida contains approximately 7,200,0002 households. It is impossible to have an exact number, but it is likely that tens of thousands of those households sit on property that is subject to one or more types of easements in Florida. Every county has record of the property easements within their borders, but for a number of reasons, some types of easements remain unrecorded. In some cases, properties are subject to easements that the owners aren’t even aware of. Easements may arise out of good-hearted neighborly gestures, as a matter of law, or even because a property owner has slept on their ability to object by failing to assert their property rights. Whatever the reason for their creation may be, easements are a real and present part of Florida’s strikingly regal, and vibrantly legal landscapes. To preface the topic, it will be useful to understand the way in which easements operate.

Black’s law dictionary defines an easement as, “An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose”.3 Any easement will involve at least two parties. The party holding the right to use the property of another (considered dominant), and the party upon which that right may be executed (considered servient). Perhaps most commonly, easements are created to allow travel from one area to another, across property which is owned by someone other than the person doing the traveling. Typically, such travel would be from the dominant landowner’s property over their neighbors’ land for the purpose of gaining access to the nearest practical public or private road. There are many other types of easements in Florida, but for the purposes of this article, only the scenario described above will discussed. While a bona fide need to use the property of another may come from a variety of sources, an obvious example would be that of a land-locked property owner. In such a case, travel across a neighbors’ property would be necessary to allow the land-locked landowner the reasonable use and enjoyment of their property by way of accessing the rest of the world. This type of easement is known as an easement by necessity. This of course begs the age-old legal question, “What is reasonable?”, and to that, there is no easy answer.

Some landowners would recoil at the thought that they are required to allow someone else to use their property no matter what they have to say about it, but such is the law. In Florida, the creation of an easement by necessity is governed under F.S. 704.01. Pertaining to this issue, Florida courts have provided some guidance on what exactly constitutes `reasonable’. While the length of an easement will likely be determined by distance between the land-locked parcel and the nearest road, the width of an easement may vary greatly. Of course, parties can agree to just about anything when negotiating the nature of an easement, but debate may still ensue. Generally, courts find that the width of an easement must be wide enough to allow for the passage of emergency vehicles, which has been held to be fifteen feet.4 Also, courts have noted that an easement must generally be free of permanent obstructions.5 Beyond these two requirements, the reasonableness of an easement is determined on a case-by-case basis. Case law suggests that so long as an easement allows proper ingress (entry) and egress (exit) to and from the land-locked parcel, the limitations on any exact path are few, provided that it does not place an unnecessary burden on the traveler.

Perhaps most importantly, courts note that while an easement should allow the dominant landowner the reasonable use of their property, it should also not unreasonably interfere with how the servient landowner uses their property, either.6 The inability to find this balance has landed countless cases in court, and this problem is only exacerbated in highly residential areas. Throwing housing communities and apartment complexes into the mix gives rise to a host of new issues. Much to the chagrin of some homeowners, developers sometimes install safety devices such as electronic gates and speed bumps over pre-existing easements, but courts have held that at least in limited quantities, speed-limiting and access-regulating devices are permissible.7 That is, of course, unless the parties agree up front that such devices are prohibited.

While parties may disagree on what exactly one or the other “needs” their easement to look like, the decision as to whether or not an easement is reasonable is ultimately in the hands of the court. No matter how anyone chooses to look at it, the need for the use of easements will not likely decline anytime soon, and neither will the need to litigate their reasonableness in court.

1. (accessed 07/18/13)

2. Id.

3. Black’s Law Dictionary (9th Ed. 2009)

4. See Filardo v. Lazo, 241 So.2d 869 (Fla. 2d Dist. App. 1970)

5. See Hof v. Scott, 453 So.2d 224 (Fla. 5th Dist. App. 1984)

6. See Dianne v. Wingate, 84 So.3d 427 (Fla. 1st Dist. App. 2012)

7. See Sandlake Residencies, LLC v. Ogilvie, 951 So.2d 117 (Fla. 5th Dist. App. 2007), Wingate, 84 So.3d 427 (2012)