Easement – Sumter County Florida

A property owner who has an easement across his land is physically moving the
easement to another location on the same property. What should the land owners
who use the original easement for ingress and egress do to maintain their legal
rights to use the easement either old or new.

Asked on January 2, 2018 under Real Estate Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

An easement cannot be moved: if this is a true easement--either found on the deed(s), or ordered by a court--its location is set unless a court issues an order changing the location. Therefore, if this is an actual easement, those making use of it may continue to make use of it as is: the property owner has no right to change an easement.
But if it is not found on a deed or created by a court order establishing an easement, it is NOT an easement. If it is not an easement but was created by a contract or agreement, such as if those who want to use it paid something to the property owner for its right, then so long as it is still the same property owner who entered into the agreement, he cannot change it: he is contractually obligated to what he agreed to. However, a subsequent or later property owner is not bound by his predecessor's non-easement contract (often called a "license" in this context): a later owner of the land can remove, disavow, or change the permission of others to cross the land.
And if there was never an easement and also never a written contract/license creating a right of access, it was just a propertly owner voluntarily or unilaterally giving others the right to access his or her land. Such a voluntary grant of permission can legally be withdrawn or changed at will.
If there was no prior easement created, just some other right of access that is being withdrawn, a "landlocked" property owner can go to court (i.e. file a lawsuit) seeking to have the court create an easement "by prescription": courts have the power to create easements IF doing so is the only way for a property owner to access his/her land. But if there is some other access point, even if an inconvenient one, courts will not do this: a court will only create an easement if there is no other way to get to the land.


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