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Ray
Ray, Lawyer
Category: Real Estate Law
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Experience:  Texas Attorney for 30 years dealing in real estate
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This issue pertains to "prescriptive easement" and "easement

Customer Question

This issue pertains to "prescriptive easement" and "easement by way of necessity" in Florida.
We have a situation where the locals have used the edge of our property for access to their property located behind us. Over time the county of Marion has even put up stop signs and a street sign. The locals claim that they have been using this access for over 20 years. We contacted the county engineers office and the sheriff's office and they both deny any jurisdiction over this particular street and go further to tell us that we are within our rights to close the street (one lane woods road) if we so desire. There are about a half dozen families that live out there. The "street" goes all the way through to another county/state road about a half mile from our property where there is another street/stop sign. These people have equal access to that road as they do the county road on our end. Is it legal for us to close the road on our end? It would still leave the other end open. My wife and I have been here for only 4 years and have experienced loss due to theft and are constantly picking up trash. We are getting tired of the lack of respect that we are receiving. During a confrontational encounter a couple of days ago, one of the locals actually told us that they allowed us to do certain things on our own property that they didn't like, and that we could expect retribution if we went too far and closed it.
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Ray replied 10 months ago.

Hi and welcome to JA. Ray here to help you today.

You would be within your rights to try and reclaim the property.The others would have to sue here and prevail that there was a prescriptive easement .Nothing is automatic here.

A prescriptive easement, similar to adverse possession, is designed to obtain rights less than full ownership to land based on long-term use or enjoyment rather than agreement or statutory methods. In order for a prescriptive easement to exist, a party must show all of the following:

  • Actual, continuous and uninterrupted use (not possession) for twenty years

  • Use, under a claim of right, in conflict with the landowner's use

  • Knowledge of the landowner or use so open, notorious, visible, and uninterrupted that knowledge is imputed to the landowner

Examples include Downing and Crigger (Downing v. Bird, 100 So.2d 57, 64 [Fla. 1958]; Crigger v. Florida Power Corporation, 436 So.2d 937, 942–943 [Florida. 5th DCA 1983]; 2 Florida Jurisprudence 2d Adverse Possession section 60 [2014])

Again they may not be able to prevail.They also have the problem that there is another way out so access here is not a problem.

You may consider fencing it if you want to take this to the courts.You may prevail here, they may not be able to prove up an easement claim.

Expert:  Ray replied 10 months ago.

Actual law

June 13, 2016

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The 2016 Florida Statutes

Title XL
REAL AND PERSONAL PROPERTY

Chapter 704
EASEMENTS

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704.01 Common-law and statutory easements defined and determined.—

(1) IMPLIED GRANT OF WAY OF NECESSITY.—The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.

1(2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT.—Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land, including land formed by accretion, reliction, or other naturally occurring processes, or portion thereof, which is being used or is desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes is shut off or hemmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof, provided that such easement shall be used only in an orderly and proper manner.

History.—s. 1, ch. 7326, 1917; RGS 4999; CGL 7088; s. 1, ch. 28070, 1953; s. 220, ch. 77-104; s. 1, ch. 91-117; s. 788, ch. 97-102; ss. 1, 2, ch. 2005-214.

1Note.—Section 2, ch. 2005-214, reenacted subsection (2) as it existed prior to amendment by s. 1, ch. 2005-214, “[e]ffective only if a court determines that subsection (2) . . . , as amended by [s. 1, ch. 2005-214], is unconstitutional and such determination is upheld on appeal,” to read:

(2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT.—Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land or portion thereof outside any municipality which is being used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.

Expert:  Ray replied 10 months ago.

Here as you can see they don't meet the statute as there is accessible right of way in the other direction.So they aren't landlocked here to qualify under the Statute.

I appreciate the chance to help you today.Thanks again.

Expert:  Ray replied 10 months ago.

More reference, think you might want to fence it and take your chances if sued.

https://www.straughnturner.com/news/no-easy-answer/