An easement is a grant of permission by the owner of land (known as the subservient estate) in favor of the owner of a different parcel of land (known as the dominant estate) to cross over and/or use a portion of the subservient estate. Since it transfers an interest in real property, it must be executed and recorded with the same formalities as a deed (i.e. before two witnesses and a notary public), and be signed by all parties having a record interest in the subservient estate. This article addresses the procedural steps to be undertaken when adjoining property owners have determined that an encroachment exists, and the parties have agreed overall to the terms and conditions of the easement to be granted.
First, the parties need to determine whether there is a need for an easement. For example, John Smith and Mary Smith own Parcel A, and Michael Jones owns the adjoining Parcel B. Mr. Jones' concrete driveway encroaches two feet in width into the Smiths' property. There is no prior grant of easement of record authorizing this encroachment. Previously the Smiths verbally consented to Mr. Jones' use of the encroaching driveway area. Mr. Jones, however, is concerned whether he will be able to continue to use this encroachment area, especially if the Smiths were to later sell their property.
The Smiths can withdraw their verbal permission at any time, and under the facts presented, the Smiths have no obligation to continue to grant him permission to use the encroaching portion of the driveway. Absent a written grant of easement, the Smiths could bring a judicial action to make Mr. Jones remove the encroaching portion of the driveway. The Smiths are willing to execute and record a written grant of easement.
First, a title search of the Smiths' property should be performed and reviewed in order to confirm that the Smiths are in fact the owners of Parcel A, and also to determine whether there are any mortgages or other liens against the Smiths' property. In the event there are any mortgages or liens existing against the Smiths' property, those lenders or lien holders will need to provide their consent and subordinate their interests to the grant of easement. Otherwise, for example, if there is a prior mortgage on the Smiths' property and the lender’s consent is not obtained, a subsequent foreclosure of that mortgage would extinguish the grant of easement by the Smiths.
After review, the title search report confirms that the Smiths own Parcel A. The title report also reflects one mortgage on the property. Mr. Smith has spoken with his mortgage loan officer, and he does not anticipate any problem in obtaining the requisite consent.
The parameters and scope of the easement need to be determined. It is not sufficient to merely recite that there is an encroachment – its exact location must be established on the public record. A complete legal description of the easement area should be provided by a licensed surveyor – to be included in the grant of easement. A survey of Mr. Jones’ property was obtained at the time of purchase. Mr. Jones will need to contact his surveyor and obtain the appropriate legal description of the encroachment area.
The Smiths intend to impose limitations on the grant of easement. They not only want Mr. Jones, and his successors in interest, to maintain the driveway at all times in its current condition, but also the Smiths want the right to use this 2-foot strip in conjunction with their own abutting driveway. This is a reasonable request, especially in light of the fact that Mr. Jones property is the one encroaching on the Smiths’ property. This might create some logistical problems when, and if, it becomes necessary for Mr. Jones to resurface his driveway. Language will need to be included in the easement document describing all of the conditions requested by the Smiths.
In conjunction with this maintenance requirement, the Smiths also want the easement to automatically terminate if Mr. Jones fails to properly maintain his portion of the driveway. The better practice would be to provide specific language by which an examiner on the public record can determine whether the easement remains in full force and effect. Although various options are available, it is determined that the easement will provide that the parties must execute and record a formal termination of the easement if the easement is no longer needed by Mr. Jones, or if the driveway is not properly maintained.
It is readily apparent there are many factors to consider in preparing and recording an easement across real property. All interested parties should consult with a qualified real estate attorney to protect their interests before executing any document which impacts their respective interests in land that they own.
This Article is not a substitute for hiring an independent attorney to prepare an easement across real property.
Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.
