Prescriptive Easements: More than Easements by Adverse Possession

Easements are usually created with written agreements between property owners, but they can also come about in other ways. For example, if someone uses a piece of land for a long time without the owner’s permission, they might get a prescriptive easement. This is different from adverse possession, which is when someone claims ownership of land they’ve been using without permission. Prescriptive easements are based on common law, not statutes. They can be discovered by inspecting the property and doing a thorough survey. The Florida Supreme Court confirmed that in order to establish a prescriptive easement in Florida, the following elements are necessary:
1) The user has made a certain and actual use of someone else’s land.
2) The use has been continuous and uninterrupted for 20 years.
3) The owner either knew about the use or it was so obvious that the owner should have known.
4) The use is limited to a specific area of land or a specific route.
5) The use has been without the owner’s permission, and the user has claimed the right to use the land.
In the case of Downing v. Bird, Downing sued the City of Homestead and Bird because they had built a road on her land without permission. The city argued that they had acquired a prescriptive easement to use the land. The court decided that in order for the city to claim a 20-year prescriptive easement, it had to prove that the public had continuously used the land as a roadway, and that the use was not allowed by the land owner. The court ruled that the city’s claim was not proven because the use was not inconsistent with the owner’s rights and there was no evidence that the use was against the owner’s interest. Therefore, the city’s claim was denied. In Florida, there’s a general presumption that using someone else’s property is allowed, not trespassing. But if you’re using it in a way that stops the owner from using it, that’s not okay. This was confirmed in a case called Dan v. BSJ Realty, where both parties used a road to get to their warehouses. The court said they were both allowed to use it because they had the same purpose. In some court cases in Florida, the main issue is whether the use of a piece of land is considered “adverse” or not. Adverse use means using the land as if you own it, without asking for permission from the owner. The use must be exclusive or interfere with the owner’s use of the land. In a specific case, one party built a dam without permission to stop another party from draining their land. The party building the dam argued that the use of the land wasn’t exclusive and was for the benefit of all the neighboring lands, and therefore wasn’t adverse. They also said they should be presumed to have had permission to use the land. If you use someone else’s property without them saying it’s okay for a long time and they don’t stop you, you might be able to claim that you have the right to keep using it. Even if the owner didn’t say anything, if you used the property in a way that was different from how they used it, they can’t assume that you had their permission. In this case, the court decided that the people using the land for drainage had the right to keep doing so, even though the landowners said they didn’t give permission. The McNeelys sued Florida Power Corporation because they wanted FPC to either remove its power lines and tower from their property or pay them for using it. FPC had cleared land and put up power lines in 1939, then replaced them with new lines and a tower in 1955. The McNeelys filed their lawsuit in 1957, so 20 years had passed since the original clearing. The court said that FPC had the right to use the land because they had been doing so for a long time, even though the McNeelys owned it. The court explained that a power company’s use of land is different from a railroad’s use, so FPC had to wait 20 years to establish their right to use the land, instead of 7 years. In the case of Phelps v. Griffith, both parties had used Lemon Patch Road for over 20 years. Phelps then fenced off the road, and the Griffiths sued to keep it open. The court agreed with Phelps that the evidence showed the Griffiths’ use of the road was allowed, not forced. Both parties had used the road until Phelps closed it off. The court also said that there was no proof the Griffiths’ use of the road stopped Phelps from doing what they wanted with their property. In another case, Guerard v. Roper, two neighbors used a strip of land for many years. When a dispute arose, one neighbor closed off the other’s access to the road. The court said the neighbor who closed the road wasn’t entitled to keep it closed because the use of the road must be against the owner’s wishes, not allowed. The court said that if someone is using land with the owner’s permission and it doesn’t interfere with the owner’s rights, then it’s not considered an adverse use. They also said that if the owner and the person using the land seem to be using it together, then it’s probably not a prescriptive easement. In another case, the court found that if someone has permission to use a property, they can’t claim a prescriptive easement. The Fulsoms built a road and had electrical service installed on land owned by the Scudders without permission. The Scudders sued and the court ruled that the Fulsoms didn’t have a legal right to use the Scudders’ land, but they were allowed to use it for necessary access and utilities. The court also ordered the electric company to move their poles. In the Gibson v. Buice case, a decision was made that to establish a prescriptive easement in Florida, a person must prove that they have been using a piece of land continuously and without interruption for at least 20 years. The use must be hostile or without the owner’s permission, and it must be obvious and visible. In the Crigger case, the Criggers claimed that FPC was using a 100-foot right of way on their land without permission. FPC argued that they had a legal right to use the land either through a recorded easement or because they had been using it for so long that they had acquired a prescriptive easement. The appellate court found that FPC did not have a legal right to use the land because they did not prove that their use of the land was adverse or without permission from the owner. The evidence showed that FPC had tried to get permission to use the land from the owners, which shows that their use was not hostile or wrongful. Therefore, FPC did not acquire a legal right to use the land. If you’re buying or dealing with real estate, it’s important to know about prescriptive easements. These are rights to use someone else’s land, like a path or driveway, that have been gained over time without a written agreement. Real estate lawyers need to be careful and check the property closely to avoid any surprise claims to use the land. Prescriptive easements shouldn’t be relied on as legal access until a court confirms they exist. John Neukamm is a real estate lawyer who knows a lot about this area of law and has received many awards for his work. “To teach its members to be responsible and help the public, make justice better, and improve the study of law.”

Source: https://www.floridabar.org/the-florida-bar-journal/prescriptive-easements-more-than-easements-by-adverse-possession/