Easements

Question 1

Easement by necessity (common law)

Answer 1

Anything by necessity is generally created only when property is virtually useless without the benefit of an easement across neighboring property.

In general, Florida recognizes easements by necessity if

1. a person grants land with no other accessible right-of-way
2. there is no reasonable or practicable way of entrance to or exit from the dominant tenement,
3. the Easement is reasonably necessary for beneficial use or enjoyment of the dominant ttenement,
4. Unity of title exist (the dominant and servient estates were under common ownership in the past)

Question 2

Statutory Easement by necessity

Answer 2

In Florida there is statutory easement by necessity for land outside of a municipality

• based on public policy convenience and necessity
• any land that is used for dwelling or agricultural purposes is shut off or hemmed in by lands, fencing or other improvements so that no reasonable route of entrance or exit is available
• The statutory easement of necessity arises regardless of whether or unity of title existed from a common source

You cannot obtain this easement if the dominant tenement is used for commercial or industrial purposes

Question 3

Easement by prescription

Answer 3

Easements can be obtained in Florida by prescription if there is continuous, actual, open, and hostile use for the statutory period 20 years.

• Unlike adverse possession the use does not need to be exclusive. Further, and adverse possessor may tack on His Predecessors Time in Order to Satisfy the Statutory period As Long As There Is Privity between Successive Possessors.
• Previous if the possessor takes by any nonhostile means.
• The periods of possession must pass directly from one possessor to the next without any gaps.

The party uses property belonging to another

The use is adverse (constitutes trespass)
Continuous and uninterrupted for the statutory period of 20 years
Hostile (without permission)
Open and notorious (owner could discover)
Exclusivity is not required

Question 4

Negative easement

Answer 4

A negative easement prevents the owner from using land in particular ways. To be valid, and negative easement must be expressly created by A writing signed by the grantor, and is typically only recognized in relation to restricting use of light, air, support, or streamwater from an artificial flow. Easements are presumed to be appurtenant or tied to the land unless they’re clear facts to the contrary. An easement appurtenant is transferred with the land to which it relates. Consequently the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate

Question 5

Implied easements

Answer 5

1. Necessity
2. Implication
3. Prescription
4. Estoppel

Question 6

Easement by necessity

Answer 6

It is an implied easement

1. Exists when there is no reasonable way of entrance or exit
2. Easement is reasonably necessary for the beneficial use your enjoyment of the land
3. There was unity of title meaning the dominant and servient a states were under common ownership and the necessity arose when they were severed

Question 7

Easement by implication

Answer 7

-created by operation of law

1. there was easement previously used on a Servient estate by an earlier owner
2. prior use was continuous a parent and reasonably necessary to dominant estate to use and enjoyment
3. The estates were once under common ownership
4. and a quasi- easement existed at severance owner used property as if there was easement)
5. then the court will imply intent for the easement to continue

Question 8

Easement by estoppel

Answer 8

Good faith, reasonable, detrimental reliance on permissions By servient estate holder, issued to prevent unjust enrichment

Initially have permission(starts with a license), rely on that permission, reasonably and in good faith, then permission is withdrawn

If there’s is detrimental reliance then person is stopped from withdrawing permission essentially creating an easement

Question 9

Scope of easement

Answer 9

Express- look to terms, if ambiguous then court considers intent of the original parties as to the purpose of the easement. Changes in news of the easement are tested under a reasonableness standard. If use exceeds scope the dominant tenant is trespassing on the servient estate.

Question 10

Duty to maintain easement

Answer 10

The owner of the easement has the duty to maintain.(not property owner) Parties can contract around this.

Question 11

Termination of the easement

Answer 11

1 release by writing that satisfies the statute of frauds
2 merger merger into title one owner of easement acquires the underlying estate
3 severance severed by attempts to convey a pertinent easement separate from land it benefits
For abandonment the owner affirmatively acts to show clear intent to abandon right,; a statement of intent without conduct and me are non-use of the easement is insufficient to extinguish the easement right
4 prescription- holder fails to protect against trespasser
5 sale to Bona fade purchaser
6 servient owner changes position to his detriment and reliance on statements/conduct of the easement holder that the easement is abandoned
7. Easement by necessity last as long as the easement is necessary if it is no longer necessary, the easement ends