Florida Eminent Domain Blog | Gregory W. Stoner

An easement is when you don't actually give up your land, but instead allow particular individuals or the general public to use your land for a particular purpose. It's technically still yours, but the other party has the right to use it for that purpose in perpetuity, and whether you try to sell your land or are being faced with an eminent domain taking, the value of your land could be diminished by the presence of old easements.

There are two ways easements happen. One way is if the government or another party comes to you and requests the use of your land. If the government is making the request, it is handled as an eminent domain procedure, often with an offer of what they consider to be fair market value for the easement. They may offer to pay a single lump sum, an annual payment, or obtain the use in exchange for good or services. For example, a water district may request the right to build an irrigation ditch on your land in exchange for supplying you with some number of acre-feet of water, or providing you with some other benefit.

Another way an easement can happen is if someone just starts using your land, without your permission, but without any significant effort to stop it on your part. One of the most common examples is when kids take a shortcut across your property to get to school, the convenience store, movie theater, or other common destination. They may take advantage of or even make a hole in your fence. If you do not repair the hole in the fence or take other actions to communicate that this is an unwelcome use of your property, once enough time has passed the courts may consider that you have essentially granted an easement for people to use this path across your property. Generally, the action you must take is more than simply posting a "no trespassing" sign. You must repair the fence, put up other barriers, or take legal action to assert your property rights. If you wait too long, you may not be able to re-assert your exclusive property rights. If you wait ten years to repair a fence, for example, when you do repair the fence, the traditional users of the path may be able to successfully sue you to restore access.

The problem with old easements is that they can significantly diminish the value of your property, especially if the user decides to expand usage. Although the new usage is technically within the limits of the original agreement or implied consent, it can be much more detrimental to your property, diminishing its value and giving you no options to get full compensation for the loss. To protect yourself, you have to be careful about easements.

Here are some steps to protect your property value in the face of explicit or implicit easements:

• If you grant an easement to another user, make sure the terms are well defined. This includes:
o How much should be paid and for how long
o The exact dimensions and location of the easement
o What improvements are necessary or permitted on the easement
o Whether the current recipient of the easement can sell or otherwise transfer ownership of the easement
o Make sure these terms are followed.
• Monitor and maintain your property.
o When you notice people taking advantage of a hole in your fence, mend it.
o If people are on your land without consent, tell them they are not allowed to be there.
o File complaints with local authorities. The police may never come out to stop kids from crossing your lawn or your neighbor from parking his truck on your property, but having a complaint on file will show you have not given up your rights.

Doing this will protect your property, its use, and value in the case of resale. And if a local government tries to expand its use of an easement, they will be forced to recognize that the new use is not in the terms of the original easement and will have to compensate you.

If you want to protect your property from unfair use and the corresponding loss of value, the Florida Property Rights Law Firm can help. Please contact us today to talk to an expert about protecting your property rights.

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