Easements by Way of Necessity

Easements can be created by agreement between property owners or they can be implied based on the circumstances. Easements by way of necessity and prescriptive easements don’t need an express agreement. In Florida, easements by way of necessity are now defined by law, but they may not show up in a title insurance commitment unless the properties have been thoroughly inspected. Before removing the standard survey exceptions from a title insurance commitment, a title examiner should make sure there are no factors that might create an easement by way of necessity. If someone owns a piece of land that has no way to get to it except by crossing someone else’s land, there’s a law that says they should have a right to cross that other person’s land. This is only if there’s no other reasonable way for them to get in and out of their own property. This rule applies if the two pieces of land used to belong to the same owner, but not if they were originally owned by the government. Sometimes, a piece of land can get surrounded by other people’s land or fences so there’s no way in or out. In this case, the owner can get a legal right to use their neighbor’s land to get to a road. To do this, they have to show that the two pieces of land used to belong to the same person, and that when the landlocked piece was sold, the owner still had access to a road. This rule was made into a law in 1917. The statutory way of necessity allows landlocked properties to have a legal right to access a road for things like a house or farm. If the owners of the land that the access road goes through don’t agree, they can go to court to decide on compensation. This law was challenged in court, but the court said that it serves a public purpose by making sure that land can be used for important things like housing and farming. The Florida Supreme Court said that the Marketable Record Title Act does not apply to certain types of necessary pathways, which the legislature still thinks are important for public use. But the Act can eliminate other pathways based on common law. There’s also a rule that if two pieces of land were once owned together, the right to a necessary pathway can still exist, even if the land has changed owners. In Florida, there are specific rules about getting a way to access landlocked property. Some cases have said that the access can only be for certain uses, like for farming or housing. If a landowner can get a way to their land through regular rules, they can’t use the special rules for access. And if they used to have a way to their land but it got blocked, they might still be able to use it. In simple terms, the court in the Cirelli case said that if someone’s property is stuck behind other people’s property with no way to get in or out, they can get a legal way to access their land. This allows them to use their property for things like living, farming, or raising animals. There are certain criteria that need to be met, like the property being outside a town and the access route being the closest and most practical one. This law helps landowners use their property and can also help the community by encouraging development and increasing tax revenue. If someone has a right to use a path or road on someone else’s property, that right doesn’t go away if the property is sold or if taxes aren’t paid. But this right only applies to paths or roads, not other uses like parking. If you’re buying property, make sure there aren’t any unwritten rights for other people to use it, or you might have problems in the future. Also, if someone is using your property for farming and there’s a path going through it that you didn’t get paid for, they might have to put up a gate or fence to keep their animals in. John Neukamm is a lawyer in Tampa who specializes in real estate law. He has received many awards and is very involved in the legal community. This article is written by the Real Property, Probate and Trust Law Section.

Source: https://www.floridabar.org/the-florida-bar-journal/easements-by-way-of-necessity/