Legal and Practical Issues of Easements in Florida: What Isn’t an Easement (Distinctions)

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July 31, 2018


Almost all real estate (“property”) is subject to one or more easements and/or licenses or restrictions that affect how the property may be used or possibly “restrict” how the property can be used.

Easements, as we have learned, typically grant a right to some sort of use of someone else’s property. Restrictions on the other hand, such as zoning ordinances and/or “use restrictions” (very similar in nature) do not give any rights to use of someone else’s property, but instead impose limitations on someone else’s use of their own property. Each is distinct in how they arise and are applied. It is therefore, vitally important when acquiring or developing a piece of property that you understand how the property will be affected by any such easements and restrictions and what can be done to ameliorate potential burdens.

Licenses are quite similar to easements, but they do not entail the “inalienable” rights to use of someone else’s property. Licenses are “contractual” obligations and are subject to the terms of the contract under which they are granted and remedies for breach of a license can be limited to claims of damage.

First, the Easement.

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For simplicity’s sake, an easement is a benefit and/or burden related to the use of real property. Common examples are utility easements and access easements. Easements are typically granted by and from adjacent property owners, but that is not always the case. The utility easement is granted by a property owner to a utility company to run a power line or telephone line across the owner’s property to service not only the owner, but also the adjoining neighbors up and down the line. Similarly, an access easement may grant you the right to drive across someone else’s property in order to get to and from your property to a public road or to a recreational lake.

It is important to understand whether a piece of property you own, or may be interested in acquiring, is affected by easements, how to interpret the writing creating the easements, and how the right to use the easements may be exercised. A recent example of the disappointing effect of an easement came to light when a homeowner, who bought the property intending to build a pool in the spacious backyard, failed to understand that the conservation easement crossing the property precluded the construction of any structures in that spacious backyard.

Second, Restrictions.

Zoning ordinances are a type of restriction we are all familiar with enacted to coordinate residential and business growth within the respective boundaries of cities and counties. Zoning ordinances impose restrictions on use and development of real estate. One common example is the set‐back requirement relating to how far from a property’s boundaries a permanent structure can be located. Another zoning restriction is that if the property is zoned business, the ordinance may preclude the use for industrial or other more intensive use.

In addition to zoning laws, another typical form of restriction can deal with the uses you may make of your property. For instance, if you lease a piece of property or space within a retail shopping center, there may be restrictions on the kinds of services or products you can sell from your property or space.

To distinguish an easement from a restriction, it is easiest to think of the 2 as either being positive or negative from the point of view of the “owner” of the easement or restriction. For example, from the point of view of an easement owner, you have the right to use someone else’s property for a particular purpose (a positive right). As the owner of a “restriction” you have the right to prevent a use on someone else’s property (a negative right).

Third, Licenses.

Here in Florida, we are all quite familiar with “licenses” by way of buying tickets to theme parks or movie theaters. Licenses are “contractual” rights and can be revoked for any number of reasons. They are not any type of ownership in property. When you buy a ticket for a theme park, you are granted a license to enter the park and enjoy the park, but your use is quite limited. You have to comply with hours of operation, duration of use, dress codes, other rules for use, and potentially numerous other limitations on your how you can use the theme park’s property. You do not have the right to use and occupy the theme park property indefinitely or for unapproved uses.

Distinguish this from an easement, where you are generally granted a right to certain uses of another’s property (and possession) that cannot be taken away or limited (other than as may be delineated in the easement grant). It is not a contract, but an actual property right that you own.

But remember, the ProfitaPrendre.

There is a hybrid interest in real property that is less than an easement, but more than a restriction or license. Key in on the word “profit”. The best example of a profit‐a‐prendre is the grant of a right to the extraction of a mineral or other “natural” resource on someone else’s property. The right to extract minerals, harvest grains or trees and/or graze livestock, are good examples. However, it is the right to the resources produced on or from the property that is in question, not the actual rights to ownership or possession. To a certain extent, the profit-a-prendre limits the property owner’s rights to use of the property so that the owner of the profit can avail her/himself of the benefits of rights. But the owner of the profits can only enter or otherwise use the property as and when reasonably necessary to cultivate and extract the subject resource.

Distinguish, the Lease.

Also, be aware of the distinction between a lease and an easement. Unlike an easement, the lease of a property typically grants an “exclusive” right to possession and use of property for a finite period of time. Easement rights are not necessarily exclusive (unless expressly made so).

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