November 07, 2015
I. DURATION
A. Express Terms: In construing express easements, courts apply contract principals for interpreting the terms and conditions of the easement and the parties’ intent. Where the language shows a clear intent to create an easement on sufficiently identified land, and the provisions of the easement demonstrate the parties’ intent that the easement be limited in time, “[the courts will] 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). See also Estate Of Johnston v. TPE Hotels, Inc., 719 So.2d 22, (Fla. App. 5 Dist. 1998). As such, courts would uphold the termination of an easement upon expiration of a stated duration or upon the occurrence of a condition triggering termination/reversion. Rudene, Inc. v. Racine, 132 So.2d 739 (Fla. 1938).
B. Way of Necessity: A way of necessity by definition arises out of set of circumstances that land-lock or hem-in the Dominant Estate, thus requiring an easement via either an implied grant of way of necessity or a statutory way of necessity. In either instance, the easement for way of necessity is and remains dependent upon the “necessity” itself, and upon the removal, termination or end of the easement for way of necessity shall also expire and terminate. Fla Jur. 2d Easements.
The first Florida case to squarely address the issue of expiration of a way of necessity is Fox Investments v. A.J. Thomas, 431 So.2d 1021, (Fla. App. 2 Dist. 1983). In looking to other jurisdictions, the court adopted the established principal “…that easements created by necessity have an implied purpose to make possible the utilization of the dominant land and such easements expire as soon as the necessity disappears.” Fox Investment. The rationale appears to be that once the Dominant Estate can sustain itself without burdening the Servient Estate, then the easement by way of necessity terminates.
The court in Parham v. Reddick, 537 So.2d 132, (Fla. App. 1 Dist. 1988) adopted this view by citing Fox Investment as prior authority. Parham further discusses the implications of this rule addressing the scenario wherein an easement by way of necessity will expire should the owner of the Dominant Estate acquire adjoining property that has access to a public or private road, thereby providing for an alternative and self-sustained means of ingress and egress and removing the need for the easement by way of necessity. The
court further elaborated on the potential for the owner of an expired implied grant/common law way of necessity to subsequently qualify for a statutory way of necessity under certain circumstances.
II. TERMINATION
A. Equitable Estoppel: When parties establish an easement for a specific purpose, the question arises as to whether or not the Servient Estate should remain encumbered by the easement where the purpose is substantially frustrated or no longer viable due to events beyond the control of either party. By way of example, should an ingress/egress easement for harvesting a specific crop of timber survive where a forest fire has decimated the crop? Or, as addressed in the case of Amlea (Florida), Inc. v. Smith, 567 So.2d 981, (Fla. App. 2 Dist. 1990), should an easement for ingress and egress to a specified building, absent an interest in the land, be extinguished upon
destruction of the building? The court answered in the affirmative. It seems apparent that where the easement holds no useful purpose without the reasonable expectation of revival, and only acts as to burden the Servient Estate absent the originally intended benefit, a Servient Estate owner should succeed in judicial termination under the principal of equitable estoppel.
B. Marketable Record Title Act: In 1963 the Florida legislature enacted the Marketable Record Title Act (“MRTA”) as a means for facilitating and simplifying land title transactions. In short, MRTA’s purpose is to extinguish outdated claims and encumbrances affecting record title to particular property, and thereby vest marketable record title to those persons who have maintained record ownership of the property for thirty years or more. See Section 712.10, Fla. Stat. (2007). Essentially, MRTA extinguishes stale claims or encumbrances affecting record title of property, subject to certain exceptions set forth in Section 712.03, Florida Statutes, and further provided that such claims and encumbrances are not less than 30 years old. See Section 712.02, Fla. Stat. (2007).
The stated exceptions related to easements are sections 712.03(1) and (5), which exclude from MRTA’s extermination "[e]states or interests, easements and use restrictions disclosed by any defects inherent in the muniments of title on which an estate is based beginning with the root of title...." and "[r]ecorded or unrecorded easements or rights, interests or servitude in the nature of easements... so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof." §§712.03(1) and (5), Fla. Stat. (2007). Provided, however, that it can be demonstrated that the easements satisfy the specified criteria.
(1) Generally: Subject to the above statutory exceptions and the more recent case of Blanton v. City of Pinellas Park which stands for preserving easements by statutory way of necessity, MRTA can and does act to terminate certain easements. Specifically, “[t]he rights or interests in land subject to extinguishment by MRTA include "rights of entry or of an easement, given or reserved in any conveyance or devise of realty, when given or reserved for the purpose of mining, drilling, exploring, or developing for oil, gas, minerals, or fissionable materials, unless those rights of entry or easement are excepted or not affected by the provisions of s. 712.03 or s. 712.04. §704.05(1), Fla. Stat. (2002).” Noblin v. Harbor Hills Development, L.P., 896 So.2d 781, (Fla. App. 5 Dist. 2005).
(2) Way of Necessity: MRTA’s purpose to extinguish outdated claims and encumbrances is intentionally broad and designed to be all encompassing save the enumerated exceptions. The Florida Supreme Court emphasizes this point by noting that it previously “..held [in Marshall v. Hollywood, Inc., 236 So. 2d 114 (Fla. 1970)] that MRTA operates to confer marketability to a recorded chain of title in land, even if the chain originates from a forged or a wild deed, so long as the strict recording requirements of MRTA are met. H & F Land, Inc. v. Panama City-Bay County Airport & Indus. Dist., 736 So.2d 1167, 1171 (Fla.1999). And more specifically with regards to easements, the Court stressed that “Based upon the unambiguous language in MRTA referring to ‘all claims’ and the clear policy underlying MRTA, both of which clearly mandate that ‘any claim or interest’ in property be publicly asserted and recorded, we find that MRTA indeed encompasses all claims to an interest in property, including ways of necessity, unless such claims are expressly excepted from MRTA's provisions.” Id.
In 2005, the Supreme Court turned its attention to MRTA’s application to statutory way of necessity in the Blanton case. In focusing strictly on the question of whether MRTA can terminate a statutory way of necessity, the Court narrowed the issue from H & F Land which has been interpreted as directed more at the common law way of necessity as opposed to the statutory way of necessity. In Blanton, the Court ruled that “MRTA's provisions cannot act to extinguish the right to a statutory way of necessity established by the Legislature in section 704.01(2).” However, the legal rationale for the ruling that MRTA does not extinguish a statutory way of necessity is more clearly addressed in Cirelli v. ENT, 885 So.2d 423 (Fla App. 5 Dist. 2004). The court in Cirelli found that the Legislature crafted §704.01(2) so as to emphasize the importance public policy, and that in doing so established that the right to a statutory way of necessity is an ongoing
and continuous right which effectively ripens and comes into existence upon the occurrence of qualifying factors. Cirelli. The court concluded it therefore must follow that “… because it is a present right, its not a right, claim or interest that would predate the root of title to the servient parcel of property and thereby be extinguishable by MRTA.” Id.
C. Release and cancellation:
(1) Separate Instrument: Just as parties to an agreement can terminate it by the terms and provisions within the agreement as well as by a separate writing, so too can parties to an easement terminate the right. An owner of an easement can deliver an express written release to the owner of the Servient Estate and thereby terminate the easement. Fla. Jur. 2d Easements §59. The specific type of instrument can be in various forms – e.g. termination agreement, release of easement, or quit claim deed – provided that the language within the document is clear as to the easement at issue and that the parties’ intent is for the easement rights to terminate.
(2) Pre-Defined Contingencies: The common theme of construing the language of an easement so as to obtain the intent of the parties is the guiding principal for assessing termination based on contingent events. “[W]hen the language of a deed is clear and certain in meaning and the grantor’s intent is reflected by the language employed, there is no room for judicial construction of the language nor interpretation of the words used – if there is no ambiguity in the wording then the intention of the grantor must be ascertained therefrom.” Shiner v. Baita, 710 So.2d 711, (Fla. App. 1 Dist. 1998. Based on this principal, the court ruled that where the seller of property reserved a septic tank hook-up easement to the conveyed property’s septic system for the benefit of seller’s retained adjoining
property, the buyer/grantee could terminate the easement in light of language in the deed that specifically provided the easement would
terminate should the buyer/grantee pay for the costs to construct an alternate septic tank system servicing seller’s retained adjoining property.
D. Merger of Ownership/Unity of Title: The principal that the owner of two adjoining parcels cannot grant an easement to himself is the foundation to therule of law that the merger of estates terminates an easement which runs on, by and between the estates. Fla. Jur. 2d Easements. “The merger doctrine is applied to separate parcels owned by the same individual in the same right where there is an existing easement that creates both a dominant and a servient estate….. An otherwise valid easement may be extinguished as a matter of law through the doctrine of merger when ownership of the dominant and servient estates becomes united in one person.” One Financial, LTD v. Hynes Prop., 884 So.2d 1039, (Fla. App. 5 Dist. 2004).
In order to satisfy requirements of the merger doctrine, the unity of title of the dominant and servient estates must occur such that:
1. the two estates are co-extensive; and 2. equal in validity, quality and all other circumstances of right. Tyler v. Price, 821 So.2d 1121, (Fla. App. 4 Dist. 2002). It is not enough for there to be a partial merger in the ownership of the dominant and servient estates – i.e. variances in the title holder (e.g. co-tenants) may be sufficient to defect the doctrine of merger. Id.
E. Conveyance:
(1) Bona Fide Purchaser Without Knowledge: As previously discussed, section 695.01, Florida Statutes (2007), provides that a purchaser who pays valuable consideration for an interest in property may avoid a prior transfer or conveyance (e.g. an easement) where there is no recording of the prior transfer and the purchaser does not otherwise have notice of such transfer. Estate Of Johnston v. TPE Hotels, Inc., 719 So.2d 22. Case law supports the denial of easement rights to lot owners within a platted subdivision where the recorded plat fails to include or disclose an easement or similar right. Id.
(2) Tax Deed: Florida Statute §197.572 addresses the affect of a tax deed on easements. Title to property transferred by tax deed under §197.572 shall continue to be subject to any easements for conservation, public utility service, for the purposes of drainage or of ingress and egress to and from other land. §197.572 Fla. Stat. 2007. Provided, however, the easement must be evidenced by written instrument properly recorded in the county where such land is located before the recording of such tax deed or, if not recorded, such easements must be visibly evidenced in relation to the purpose of the easement (e.g. an ingress and egress easement should be evident by a road or other visible occupation); however, this shall apply only to tax deeds issued after the effective date of this act. Id. F. Abandonment: Florida law recognizes that easements can be abandoned.
The definition of abandonment is as follows:
“To abandon an easement is to relinquish it with the intent of never again resuming or claiming a right or interest in it, to give it up absolutely, to forsake it entirely, and to relinquish all connection with or concern in the easement.” Fla. Jur. 2d Easements §63.
The courts have established that ascertaining whether an easement has been abandoned is a question of fact, not law, and the question is ultimately one for the finder of fact. Jewett v. Leisinger, 655 So.2d 1210 (Fla. App. 4 Dist. 1995).
In order to prove abandonment, the burden is on the Servient Estate owner to show that the conduct of the Dominant Estate owner is “... outwardly manifesting an intent to no longer use the easement, or conduct inconsistent with the continuation of the easement.” Enos v. Casey Mountain, Inc., 532 So.2d 703 (Fla. App. 5 Dist. 1988).
G. Adverse Possession: Florida case law holds that an easement can be extinguished through adverse possession. Generally, In order for a claim of adverse possession to succeed, the owner must be continuously excluded from use for a period of seven years. Enos at p. 706. Where the Servient Owner seeks to extinguish an easement through adverse possession, not only must claim persist for seven years, the following criteria must also be satisfied:
(1) Use must be adverse to owner and owner must have knowledge of use, or the adverse use must be open, obvious and notoriously
against owners interest.
(2) Use must not be permissive – i.e. the use is such that the owner has a right to legal action against the claimant.
(3) Claimant must demonstrate through clear, definite and accurate proof that the adverse possession continued for the full seven
year period. Bentz v. McDaniel, _____ So.2d _____, (Fla. App. 5 Dist. 2004).