Neighbors with Benefits (and Burdens): Land Easements and Disputes

Learn about easements, land use disputes and your legal rights from the experienced land use zoning attorneys at Sarasota's Icard Merrill law practice

by Bradley J. Ellis, Esq.

Frost wrote that: "Good fences make good neighbors." What Frost forgot to squeeze into his poetic meter is that an otherwise good fence obstructing an easement - or an ambiguous easement itself - makes litigious neighbors. If your property is burdened or benefitted by an easement, be sure you understand the scope of the easement and your rights before altering the easement area.

What is an Easement?

 An easement is a non-possessory benefit to use and/or enter onto the burdened real property of another. Easements come in many forms and purposes, but within the Gulf Coast one of the most prevalent types of easements is an access easement across gulf-front lots so that neighbors lacking a full-time gulf view have dedicated private access to the beach. As a result, among the most prevalent neighborly disputes we see involve either the benefited neighbor attempting to make improvements to the easement area to better enjoy the easement, or the burdened owner attempting to make the easement as least intrusive as possible (to lessen their burden).  

In general, a benefited neighbor is legally entitled to improve, maintain, or repair the easement in order to facilitate its use. Stated another way, an easement carries with it by implication the right to do what is reasonably necessary for the full enjoyment of the easement itself. What is "reasonably necessary" is measured by the purpose of the easement as initially intended by those who created it, and is limited to those acts which do not materially increase the burden on the burdened owner. Similarly, depending on the specific easement, the burdened owner may be permitted to make minor alterations to the easement area so long as such alterations do not unreasonably interfere with the use of the easement. These considerations are heavily factually driven, and in many cases it is difficult to predict the legal outcome of taking action without the prior agreement of your neighbor.

In many instances, the burdened owner seeks to add an access gate across an easement. In general, the servient estate may erect a gate across the way, if the gate is constructed so as not to interfere unreasonably with the right of passage. Typically, this may be appropriate if the easement is expressly a pedestrian easement, and if any security features are reasonable. However, if the easement is not limited to pedestrian traffic, it is advised you consult with a knowledgeable land use zoning attorney regarding your rights prior to stirring the nest.

Land Use Disputes

In at least one case, an easement that did not expressly limit itself to pedestrian traffic, and merely provided "for ingress and egress for recreational use of the Atlantic Ocean," was held to "impliedly permit[sic] the use of vehicles needed to trailer sailboats and other small water craft to the ocean." BHB Development, Inc. v. Bonefish Yacht Club Homeowners Association, Inc., 691 So.2d 1174, 1176 (Fla. 3d DCA 1997). In so finding, the Court affirmed an order directing the removal of a gate across the easement and forbidding the future installation of gates, as the Court found the "…gate across the easement amounts to a substantial interference of the dominant easement holders' rights to use the easement." Id. at 1177.

Many of the water related access easements we see, especially older easements, are not expressly limited to pedestrian traffic. This nuance can be: a dangerous land-mine for an unwitting, burdened land-owner who unilaterally gates a "walkway" easement only to eventually have to remove the gate and permit improvements for the use of boat trailers; or a heavy hammer for a benefitted owner seeking an agreement on lesser impact improvements.

Your Legal Rights

If you are either burdened or benefited by an easement and are considering discussing with your neighbor changes to the easement area, please be sure to contact an attorney regarding your rights. A little advice will go a long way towards keeping you in Frost's "Mending Wall," and out of Shakespeare's feud between the Montagues and Capulets.

** All information contained herein does not constitute legal advice. Contact an attorney to discuss your individual case