Prescribed Easement… Do We Need A Doctor To Get One?

An easement by prescription creates a right in someone else’s land. There are certain requirements to create an easement by prescription in Florida.

wood fishing road water
Photo by Aaron J Hill

Florida laws automatically create an easement by prescription for Florida property owners when one owner has openly used and possessed another’s land for 20 years. 

Easements grant certain individuals the right to use or enjoy the land of another for a specified purpose and without fear of repercussion. The use must be consistent with the general property rights of the actual owner. 

An adverse possession must be considered actual, open, notorious, visible and uninterrupted and without the consent of the owner. 

According to the University of Florida Handbook of Florida Fence and Property Law: Easements and Rights of Way, Florida is one of many states that recognizes easements and rights of way. 

Florida recognizes two types of easements: 

Prescriptive and conservative. It is important, if you hope to enact easement rights, that you understand the differences between the two.

dirt road
Photo by Micah Boerma

A prescriptive easement works similarly to adverse possession.

You may be able to obtain rights less than full ownership if you can prove that used the land continuously and uninterrupted for 20 years, that you did not have permission from the actual landowner to use the land and that your use was so open, visible, notorious and uninterrupted that it would have been possible for the landowner to not have known about it.

Key points vital for Easement by Prescription

  • Parties such as a person, partnerships, legal entities, government organizations, or companies are eligible to acquire the easement rights.
  • The third party should use the property without the consent or authorization of the property owner.
  • The timelines to determine the invoking of such rights can differ as per laws under a different jurisdiction.
  • The right granted to the trespasser does not transfer the ownership of the property. However, he can continue his use.
  • It is not necessary to make exclusive use of the property to claim the prescriptive easement. If multiple persons are sharing the same passage, you can still claim these rights.
  • The prescription period starts the moment when the trespasser starts making actual use of the property.
  • Different users can share the period of actual use. If you buy property from a person who was using the neighboring land for the passage for five years and the legal period of easement by prescription is ten years, you can invoke the easement by using that property for the next five years.

A conservation easement is an express easement that protects land from development. The only entities that may obtain a conservation easement include a government body or a charitable organization or trust.

This type of easement prevents activities that include but are not limited to excavation, dumping, construction or tree removal. Once the easement is in place, no person or entity may change it to allow development. Several types of property may be privy to this protection, including farmlands, cultural properties, historical lands and archeological sites.

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Photo by Sora Shimazaki

Under Florida Statutes, possession shall mean that the land has been cultivated, improved, enclosed or protected. 

Easements are also created by written instrument, by court order for necessity and by condemnation for public good.

Easement by prescription Florida law is complicated. You should consult with a Florida real estate attorney for advice. 

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