That Pesky 704.01 Statute
The easement issue: The Florida Common-law and Statutory Easement statute allows it. The last property owner may have agreed to it. And you now have strangers traversing your property or a property you want to buy. Is there anything you can do about it?
As a Florida resident you may be familiar with a concept known as an easement. The vast majority of easements are legal, and most of the time you probably don’t even notice them, but as a Florida property owner you are not required to allow them to last forever. Sometimes an easement can impact your ability to buy or sell property. That’s when you need to know when and how to end your easement.
What’s An Easement?
In a nutshell, an easement is simply written permission for a nonowner of a property to use a piece of property in a specified way. For example, utility companies have easements for going onto your property to service your account and make repairs. You might also grant an easement to your neighbor to use part of their property for their driveway.
How to End Your Easement
In Florida there are several different ways to terminate an easement depending on what type of easement it is.
Let the easement expire. Some easements are granted for a limited time, such as when they need access to a property during construction. Once the construction is finished, the nonowner no longer needs access, and you should be able to get the easement removed. However, the nonowner will need to have completed another access point to the site for you to be allowed to remove it.
Quieting the title. If an easement has been in existence for a long period of time, usually a few decades, then it might be possible to file to have the title quieted. To quiet the title, you must get the land resurveyed. Your land’s borders can be reset if no one contests the quieting of the title. When and if this redrawing of the property’s boundaries occurs, your easement can be removed automatically.
Lack of use. Sometimes an individual will start using a property they don’t have access to. This usually happens if the property has gone unused for several years. This is known as a prescriptive easement. If the nonowner stops using the property, then the owner can get the prescriptive easement terminated.
Abandonment. This occurs when a nonowner blocks access to the area they were using, like when a utility company erects a fence around the original easement area. They can be said to be abandoning the easement since they blocked access to the area the easement provided them entry to. Proving abandonment can be tricky, however. Say for example a construction company halted work on a property for a long period of time. Presumably they could start up again at any time. To get the easement abandoned you would have to show proof that the construction company had no intention of starting work there again.
Destruction of the reason for the easement. This occurs in cases where there is a shared fence or wall that sits on the dividing line between two properties. In theory, removing that wall or fence would terminate the easement.
Drafting a release agreement. This can be done in situations where an easement existed between previous owners of a property. Say your neighbor was using part of your property to access his property, and then sells his property. For whatever reason, the new owner doesn’t need to access the property in the same manner. You could then sign a document that releases the new property owner from the easement, which would release the property from being subject to the easement.
Before attempting to end an easement on your property, consult with a professional, preferable a real estate attorney Florida-Bar-Board-Certified in real estate law. They can help you determine if you have legal grounds for terminating an easement and guide you through all the legal steps to do so.
Contact Florida Bar Board-Certified Attorneys David E. Klein, Esq. and Guy Rabideau at Rabideauklein.com. They have the expertise and experience you need to ensure that your interests are protected throughout your real estate transactions in the Town of Palm Beach, across the Palm Beaches and throughout Florida. Contact Rabideau Klein today to discuss the legal implications of your Florida property transactions.