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. Third, easements can be express or implied. An express easement can also be created by way of dedication and acceptance. Modern, Inc. Either way, express easements must be in writing.
Dupont v. Whiteside , So. 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.
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.
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. 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. BHB Development, Inc. 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, So. The scope of a prescriptive easement, on the other hand, is defined by the use during the prescriptive period. Hicks, So. 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. Please choose a category from the list. Please select a city from the list and choose a category.
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Look for stormwater drains, tire tracks, evidence of someone else using the land, or any other signs that an easement might exist. You can also ask the title company to give you a copy of any easements it has. Not every title company provides copies of recorded easements. Title companies are often only required to notify owners that an easement exists. Easements are also not covered by title insurance.
In some cases, easements are excluded on Schedule B of your title policy commitment or preliminary title report. In most cases, there is a note that includes where to find the documentation. Easements can be terminated in a variety of ways, but there are detailed legalities to doing it correctly. Sometimes it's as simple as dissolving an easement where the land in question has been abandoned. In other cases, the process may be more complicated.
If you want to terminate an easement on your property, it's a good idea to speak with a lawyer. Utility easements vary in size depending on the specific utilities running through the easement. A basic electric underground easement may only be 10 feet wide, while a sewer easement could be as much as 30 feet wide.
Check with your local utility provider for more information. Generally, you can build on easements as long as the building doesn't interfere with the purpose of the easement. You may need to seek permission before building or even digging in a utility easement, though, so be sure you check with any interested parties to avoid any issues. Expert Law. Donnie Sherwood. Accessed Mar. New York State Attorney General. Florida's Title Insurance Company.
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List of Partners vendors. Table of Contents Expand. Table of Contents. What Is an Easement? How an Easement Works. Easements vs. Other Types of Easements. What Are the Effects of Easements? Can Easements Affect Property Values? Learn about our editorial policies. Reviewed by Lea D. Lea Uradu, J. Tax Resolution Services.
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