October 01, 2018
Author: James E. Toale, Esq.
Organization: Bowman, George, Scheb & Toale, P.A.
The law of Real Property has its roots in the Old English Common Law, which had many technical requirements. Easements, being an interest in real property had many of these technical requirements for their creation. However, the law has evolved to eliminate many of those technical requirements.
1. Lease. A lease grants the tenant the right of exclusive possession to a piece of property for a term of years. Upon the expiration of the lease term, the possessory right reverts to the owner of the fee.
2. License. A license grants the licensee the authority to do a particular act, or series of acts, on another’s land without possessing any estate in the land. Devlin v. The Phoenix, Inc., 471 So. 2d 93 (Fla. 5th DCA 1985), rev. denied, 480 So. 2d 1295 (Fla.) A license has the following characteristics:
(1) A license, whether express or implied, is not a right, but is a personal privilege.
(2) Because a license is a personal privilege it is not assignable without express permission.
(3) Because a license is not an interest in land, it is not subject to the statute of frauds.
(4) A license may be made by oral communication.
(5) The creation of a license does not require consideration.
Generally, a license may be revoked at any time. However, if a license is granted for a specific purpose and that purpose has not been satisfied or completed by the licensee, the doctrine of equitable estoppel will prevent it from being revoked until the purpose has been satisfied.
License v. Easement. A license does not constitute an interest in land, can be created by oral communication, and is generally revocable. An easement is an interest in land, is usually created by a written document executed with the formalities of a deed and is often permanent.
Practice Tip. If you represent a client whose property is being used by another, send a letter to the user advising that they may continue the use as a license which may be revoked at any time. This will avoid the creation of a Prescriptive or Implied Easement.
3. Profit. The definition of Easement in a 1926 Florida Supreme Court case included: a privilege without profit under which the owner of the property interest has a right to enjoy that interest in or over the property interest of another person. So what is a profit? A profit, or profit a predre “is the right or privilege to acquire, by severance or removal from another’s land, some thing or things previously constituting a part of the land or pertaining to the land. It is therefore distinguishable from an easement, since one of the features of an easement is the absence of all right to participate in the profits of the soil charged with it”, Ferley v. Hiers, 668 So 2d. 248 (Fla 1st DCA 1996). Examples of items which could be taken from the land include: timber, fuel, fish, sand or minerals. Since the rules which govern the creation of easements and profits are virtually identical, the courts in Florida have recently made little distinction between easements and profits, Peacock v. American Agronomics Corp., 422 So 2d. 55 (Fla 2d. DCA, 1982). So for practical purposes an Easement can be created either with or without a profit.
4. Covenant. A covenant is a promise to either do something or not do an act. They are found in documents like subdivision restrictions. A covenant may not include the right of limited possession or use of property, while an easement most often does confer that right. A covenant is similar to an easement in that sometimes one property benefits from the covenant while the property subject to the covenant suffers a detriment.
5. Affirmative Easement. An affirmative easement authorizes the easement holder to perform certain acts on the servient estate that he would not otherwise be authorized to do. Access easements, drainage easements and public utility easements are examples of affirmative easements.
6. Negative Easements. A negative easement prohibits the owner of the servient estate from performing acts on the land that he would otherwise be entitled to do as an owner. Examples of negative easements are easements for light, air, view, conservation easements or solar easement (see F.S. 704.06 and 704.07). In Florida, absent a negative easement for light, a property owner can obstruct the light of an adjoining property owner even if the blocking structure was constructed out of spite provided it serves a beneficial purpose. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. 114 So. 2d 357 (Fla. 3d DCA 1959) cert. denied, 117 So. 2d 842 (Fla. 1968)
7. Easement in Gross. An easement where there is no dominant estate or serviant estate. A public utility easement is an example of an easement in gross. An easement in gross must be transferred with a specific assignment document.
8. Easement Appurtenant. An easement which benefits the dominant estate. An easement which runs with the land. When the dominant estate is conveyed the easement conveys with it.
Practice Tip. Always include the easement in the deed.