Jun15

Q. I have an easement running across my property, but it is being used by unauthorized individuals or in ways that do not coincide with its intended use. Is there a downside to this?

White picket fence and green grass.

As a general rule (and this is purely my oversimplification a number of legal theories) under the law, if you allow someone to do something that’s adverse to your interests for a long enough period of time, that person will eventually gain the legal right to do that thing in the future. Where Florida real estate is concerned, there is always a risk that your land can be legally claimed or seized by others, or that you can lose your rights to your land completely. This premise is commonly known as “squatting,” or, in legal parlance, as adverse possession. Most people are familiar with the existence of “squatters rights,” and take measures to assure that their land is not being squatted upon; however, many do not realize that easements can similarly be created or expanded upon their property by the improper behavior of others.

An easement created via “squatting” is called a prescriptive easement. In layman’s terms, a prescriptive easement is created when an adverse party uses a certain piece of your land for an uninterrupted period of twenty years, which you knew or should have known about, and the use is inconsistent with your rights to the land. In practice, this means that you must sue the adverse party to prevent him from further using your property before the twenty year continuous use period expires. Be warned, once an adverse party gains prescriptive easement rights to your property, the courts will enforce that party’s right to use your property in the future!