How Easements Legally Affect Your Real Estate Investment

Easements grant others access to owned property and can come in official and unofficial forms. They can start with an agreement or simply evolve over time. Here we explore what an easement is and what legal matters may arise around the concept of non-owner property use and access.

What is an Easement?

An easement is one’s right to use another party’s property for a specific purpose. It might be, for example, a right of way “in order to access a public road” or an easement in gross “in order to build and maintain a retaining wall”. Easements, in ideal situations, are granted in exchange for payment.

The existence of an official easement differentiates legal land use from unlawful encroachments and trespassing. However, there is a wide range of situations between official contractually defined easements and outright trespassing. This is because some easements are unofficial and may evolve over time.

Official Easements

Official easements often occur when a past owner of your property agreed to an easement in the past. In this case, there would likely be documentation as part of the public records that shows such an easement exists. An example of an official easement is an “easement in gross”. This is a type of easement that grants access to such entities as utility companies burying cable under the others’ land.  In such cases, the current property owner simply inherits the easement when they purchase the property.  A thorough title search of the property should reveal official easements as part of the routine set of steps required to obtain title insurance for the property.

Likewise, you may agree to easements as the current property owner. Often times, easements may be granted in exchange for money. In any case, it is important to ensure that the document outlining the specific rights to access, transit or use a part of your property are well defined. An experienced real estate attorney with expert knowledge of local laws and codes will be able to draft such a document to protect you and your property from encroachment, trespassing and the various perils that may result in your loss of the property over time.

How Unofficial Easements Evolve

Not all easements are backed by official documents. Unofficial easements may evolve overtime when someone either uses or possesses the property of others without contest. For example, if someone builds a wall on an adjacent property and the owner of that property does not take legal action against the encroachment, then what was once a case of trespassing may become what is called a “prescriptive easement”. If you are the property owner and a portion of the property is subject to a prescriptive easement, you may lose some or all of your right to access and use that land in the future.

“​…your ability to articulate your rights in an easement-related matter will most likely require the services of an experienced real estate attorney.”

Contested Property-Use Matters

Sometimes easements are considered to be “appurtenant by necessity”. Local, state or federal government or even a locked-in neighbor may seek access to a public road. Are you the owner of a property and have just received a request for an easement? Parties making an appurtenant easement request may take you to court if you refuse to grant it.
Beware of attempting to negotiate or adjudicate your case alone. As soon as complex property usage issues arise you should contact an experienced real estate attorney and to make sure that you have professional representation and receive sound legal advice. Any decision made without legal advice may negatively impact your rights to fully use the property you invested in.

How a Real Estate Attorney Can Make a Difference in Your Case

There are four ways a real estate attorney can assist you in identifying and remediating easement-related legal issues.

  1. Title Search
    When buying or selling property, it is important to thoroughly understand whether the property’s past included official or unofficial easements. If you suspect that your property may have an official easement in the public record, a title search by an experienced law firm can reveal it.
  2. Negotiation
    In cases where parties have a reasonable claim to consider, your real estate lawyer could represent you in discussions with a view to protecting your property rights and exacting the right value in exchange for any easement rights being granted to other parties. If you are the party requesting an easement, your ability to articulate your right to an easement by necessity will most likely require an experienced real estate attorney.
  3. Real Estate Litigation
    In cases where a neighbor, corporation or government entity takes you to court you will need an experienced lawyer to prepare and try your case. Make sure that the law firm you choose is specifically experienced in complex real estate matters and has the resources to manage your case for the extent of the time required.
  4. Property Tax Appeals
    Once the easement matter on your Florida property has been settled or a decision has been reached in court, it is important to note whether there has been a real property value decrease. If your property value has fallen, so should the property taxes you are expected to pay on that property. It is essential that your real estate attorney has the expertise required to appeal your property taxable value.

South Florida Law, PLLC is both an experienced real estate law firm and an active title insurance agency. We have the in-house skills and staff to conduct title searches, manage the legal aspects of real estate transactions and represent parties in easement-related matters anywhere in the State of Florida. Are you involved in an access or easement-related dispute? Are you concerned about access rights to your property or are you seeking your rightful access to public use land via a neighboring property? If so, call South Florida Law today at (954) 900-8885 for a free consultation.

Burton Landau Esq. is the founding partner of South Florida Law, PLLC and is an experienced Florida real estate attorney. Mr. Landau and his team have successfully drafted and reviewed important real estate documentation on behalf of businesses and individuals who own or are buying properties in the State of Florida. Whenever disputes have occurred, Mr. Landau has aggressively protected the property rights of individuals, businesses and housing associations throughout Miami-Dade, Broward and other counties in Florida. Mr. Landau is fluent in Russian and serves clients both inside and outside of South Florida’s influential Russian-speaking community.

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