How Do Easements Affect Florida Real Estate Transactions?
When someone is interested in buying a home in Florida, it is generally their responsibility to research any potential issues in ownership before agreeing to the sale (with certain exceptions). The existence of a servitude – that is, a long-term agreement that ‘runs with the land,’ such as an easement – can sometimes complicate matters, particularly in light of a new piece of legislation that was signed into law in June 2024. Contacting the right attorney can help to clarify matters.
‘Non-Possessory’ Use Of Land
An easement is defined as a ‘non-possessory right of use or enjoyment’ of another person’s land for a specific purpose – for example, one of the most common easements in Florida is allowing neighbors a right-of-way so they can access a beach or another parcel of land, either via explicit written grant, or it may simply be implied from historical use. Most of the time, courts will simply allow the right of easement to ‘run with the land,’ meaning that even if the property changes hands, the easement will be preserved unless an exception applies.
There are many different kinds of recognized easements, differentiated by the reason for their granting. For example, utility easements are granted to utility companies, while easements appurtenant are granted specifically to the owners of the adjacent parcel or parcels of land. An easement may even be created by prescription – state law holds that if someone engages in “open, notorious, hostile, and adverse” possession of a piece of land serving as an easement, it becomes a legally recognized easement after 20 years.
Issues Regarding Created Easements
While most easements are simply granted or allowed to continue by new owners, it is not uncommon for a new owner to wish to either restrict or eliminate the easement for various different reasons. Most of the time, this can be done simply by including a restriction in the deed, but it does happen that a buyer may lose interest in a potential home if an easement is overburdened or misused.
In addition, a potential problem may be created by the passage of a new law governing easements in 2024. Historically, Florida courts have adhered to the common law “merger” doctrine, holding that a property owner cannot create an easement on their own land – but the law expressly grants property owners that right, in order to allow them a more flexible approach to using their own land. This is likely to create confusion and potential litigation about which easements are valid and which are not.
Contact A Tampa Real Estate Attorney
It is important to ensure that you are satisfied as to all potential issues before pulling the proverbial trigger on a real estate sale. A Tampa real estate attorney from the Seward Law Office can help answer your questions about easements and other servitudes. Call our office today at 813-252-6789 to schedule a consultation.
Source:
flsenate.gov/Laws/Statutes/2021/0704.01
