November 07, 2015

I. EASEMENTS: CREATION

PRIMARY REQUIREMENTS

A. Legal Capacity: By general definition, an easement is essentially an irrevocable body of rights of one party (i.e. Dominant Owner) to enjoy specific benefits associated with the real property of another (i.e. Servient Owner). Additionally, such rights, unless expressly limited in duration, are generally intended to be permanent in nature (except for easements in gross); therefore, the Servient Owner who grants an easement must possess a fee ownership in the subject property (i.e. Servient Estate).

B. All Owners Required: An express grant of easement will require that all owners of the property execute the easement document. Where the Servient Estate is owned by a single owner, then only such single owner’s signature is required. If, however, the property is owned by multiple parties whether jointly and severally or as tenants in common, then all owners must execute an easement in order for it to be effective.

In Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. App. 5 Dist., 1983), FPC sought to defend a claim of inverse condemnation and establish an easement by way of necessity or prescription. The lower court ruled that FPC had established its rights to a prescriptive easement and the appellate court reversed and remanded. As one defense, FPC asserted its rights via an express easement. However, the Servient Estate was owned by three sisters and FPC failed to obtain the signatures of all three owners on the easement agreement.
FPC only obtained the signature of one of the sisters. Failure to have all three owners of the property sign the easement agreement rendered the instrument ineffective. At best, FPC had obtained a permissive right of use.

C. Limited Grants.

(i) Life Estate: Just as a co-tenant cannot unilaterally encumber the estate of the other co-tenants, the owner of a life estate cannot bind the remainderman’s interest with a perpetual easement. While, the fee owner of a life estate can grant an easement, the duration and enforceability of that easement shall be limited to the term of the life estate (i.e. the lifetime of the life-estate grantor). Fla. Jur. 2d Easements.

(ii) By Tenant: While tenants lack the “fee” necessary to grant an easement such that it would bind the landlord post lease term, a tenant nevertheless may grant a right of way, provided however that the governing lease does not expressly prohibit such a grant. The effect of such a grant is to establish a license which will terminate upon termination of the leasehold estate, or sooner if revocable by the tenant. Fla. Jur. 2d Easements.

II. METHODS AND MANNER

Easements are essentially created via three methods: (1) Express Grant; (2) Implication; and (3) Prescription.

A. Express Grant, Reservation or Covenant: The methods through which an easement is expressly created encompass not only a direct grant of one party to another party via deed, but also by way of reservation or exception within a deed, and additionally through a separate or independent agreement or covenant.

Express easements can be “affirmative” easements granting rights to an individual or Dominant Estate to do a particular thing, such as rights of ingress and egress; or a “negative” easement prohibiting certain acts, such as planting vegetation and landscape having a maximum height so as to not block a water view. In addition, express easements can also be “In Gross,” where a right is  granted which is personal in nature to a specific individual; or it can be “appurtenant” and run with the land so as to perpetually burden the Servient
Estate.

General examples include:
(i) Ingress and egress
(ii) Drainage and irrigation;
(iii) Utility;
(iv) Service Easement;
(v) Negative restriction to not erect certain structures or conduct specific activities.

When creating an express easement it is important to note that as an interest in land, Florida Statutes §§ 689.01 and 725.01 require it to be in writing. Devlin v. The Phoenix, Inc., 471 So.2d 93 (Fla. App. 5 Distr. 1985). Creating an easement by deed entails expressly stating the purpose/intent of the easement and its location within the Servient Estate directly in the deed of conveyance itself, which is then recorded in the public records. Similarly, an express easement arising through a separate written instrument should contain
purpose/intent of the easement and its location within the Servient Estate (identified by legal description), and should be signed with all the formalities of a conveyance by deed and then duly recorded in the public records.

B. Formalities:

(i) Language: Creation of an easement does not require specific wording or form of instrument; “…. rather, any words clearly showing the intention of the parties to create a servitude on a sufficiently identifiable estate is sufficient.” Citgo Petroleum Corp. v. Florida East Coast Rye Co., 706 So.2d 383 (Fla. App. 4 Dist. 1998). The interpretation and enforceability of an easement are founded upon the intent of the parties. Where the language within the easement instrument shows a clear intent to create an easement on sufficiently identified land, courts are reluctant to modify or nullify such unambiguous agreements and will typically conclude there is a valid easement.

However, an easement which fails to state a clear purpose or set forth a purpose at all, is not typically found to be fatally defective. American Quick Sign, Inc. v. Reinhardt, 899 So.2d 461 (FL 2005). Where ambiguity clouds the purpose of the easement, the courts will have to ascertain the parties’intent. It should further be noted that any ambiguity within an express easement will be resolved against the grantor. Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla. App. 5 Dist. 1992).

In assessing vague and imprecise language of easements Courts apply essentially the same standard of review as utilized in assessing contract matters, for which a primary tenet is: In construing language within a contract, “… if the language is clear, concise and unambiguous, [the courts] must give effect to the terms as stated without resort to other rules of construction to ascertain their meaning.” American Quick Sign, Inc. v.  Reinhardt, 899 So.2d 461 (Fla. App. 5 Dist. 2005). Conversely, where the language is uncertain and ambiguous, then courts will turn to external sources of information to determine the parties’ intent for the easement.

American Quick Sign.

The challenge for the courts is ascertaining the true purpose of the parties and determining the scope of the easement. In American Quick Sign, plaintiff Reinhardt was the owner of a Dominant Estate for which the easement provided for a “non-exclusive easement for ingress and egress of vehicular and pedestrian traffic…” Prior to American Quick Sign acquiring title in the Servient Estate Reinhardt erected a commercial sign within the easement, to which the Servient Owners at the time objected but never forced removal of
the sign. American Quick Sign subsequently purchased the Servient Estate, and for a short period of time actually shared use of the sign with Reinhardt. Ultimately, American Quick Sign decided to remove Reinhardt’s logo from the sign and Reinhardt brought suit to determine that the easement permitted Reinhardt to maintain a sign within the easement. The Court cited numerous cases in its opinion supporting the principal that the burden of an easement upon the Servient Estate may not be increased or extended beyond that
reasonably contemplated by the parties creating the easement at the time of its inception. American Quick Sign. Therefore, the Court ruled that rights afforded to Reinhardt by the easement did not extend beyond the specified ingress and egress rights, and that American Quick Sign was not unreasonably interfering with the easement by removing Reinhardt’s logo from the sign.

Another case of disputed scope within an easement is Hobbs v. Kearney, 674 So.2d 145 (Fla. App. 2 Dist. 1996). Grace Kearney purchased from Helen Hobbs property located on Manasota Key which fronts the Gulf of Mexico. Part of the deal included Hobbs granting Kearney an easement across Hobbs Lemon Bay property affording Kearney access to Lemon Bay. The contract between the parties stated the purchase included a three foot easement “to the waters of Lemon Bay.” However, prior to closing, Hobbs issued a letter of clarification stating that: (1) the deed would contain A threefoot walking easement over the South portion of Hobbs Lemon Bay side property, (2) Kearney could build a 3-foot wide dock at the end of the easement, and (3) if Hobbs developed her property, Kearney could dock a boat free of charge for so long as Kearney owned the property. At closing, Hobbs issued a separate easement deed that provided a three foot walking easement, but failed to include the wording “to the waters of Lemon bay”. The issue became whether the easement in light of the surrounding circumstances afforded Kearney full riparian rights. The court said no, finding that the easement deed does not grant docking rights into Lemon Bay. Given there was no ambiguity within the easement deed, the court could only interpret the clear language on the face of the instrument which was limited to a three foot walking easement.

Click Here for the continued article on Easements: Duration and Termination

This outline is intended to accompany the author’s oral presentation from a Lorman seminar. It is not, nor should it be construed as legal advice or legal opinion regarding any specific facts or circumstances.