Daily Development for Tuesday, March 22, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

EASEMENTS; IMPLICATION: An easement recorded in favor of oneself is void as an express easement, and Florida law will not recognize an implied easement arising from preexisting use unless there has been a prior grant of an easement in a “duly executed” valid document that is too ambiguous to create an express easement.

One Harbor Financial Ltd. v. Hynes Prop., 884 So. 2d 1039 (Fla. App. 2004)

Hoffenberg owned two parcels, acquired by separate deeds in which his name appeared as grantee followed by the words “trustee” or “as trustee.”  He build a 75,000 square foot building on one of the parcels.  The city land use rules required parking in excess of that which could be provided on that parcel, so he wrote and recorded an easement creating access and a parking right for 13 cars on the adjacent parcel that he also owned.  A few days after the creation of the easement, Hoffenberg sold the servient parcel.  His deed made no mention of the easement, but apparently the access and parking rights on that parcel were already in use, and they remained in use through various transfers of that parcel over the next fifteen years.  One Harbor became the owner of the servient parcel.

Then Hynes acquired the servient parcel, relying upon the advice of a pretty canny counsel that the easement would be declared invalid.  That advice proved to be  correct.  The trial court declared the easement invalid and the court of appeals here affirmed.

Florida law requires that easements be created in writing with the same formality as a deed - two subscribing witnesses.  Although the easement deed in question met that formality, the court held it to null and void because Florida law made clear that a easement cannot arise unless it is  transferred to a party other than the owner of the servient estate.  Any attempt by an owner to create an easement on his own property will be completely void.

One Harbor argued that at the time the easement was created Hoffenberg did not hold title to the two parcels in the same capacity.  It noted that Hoffenberg was a trustee for different trusts.  But the court held that where a deed indicates that a party takes “as trustee,” but does not identify the beneficiary of the grantee’s trusteeship, the grantee will be treated as the owner.  Therefore, Hoffenberg had to be regarded as the full owner of both parcels at the time of the easements.  Therefore, there could be no express easements.

One Harbor then argued that an easement by implication arose from pre-existing use. It is not really clear from the case whether in fact there was any easement use of the argued-for servient property before it was severed from the developed parcel.  The court says that “the use of the easement” commenced on the day that the transfer of the servient parcel was recorded.  But this potential deficiency in the requirements for an ordinary common law easement by implication was a moot issue, because the court ruled that Florida does not recognize the concept of the easement by implication from pre-existing use except where there is an absolute necessity for such an easement.

Here, there was no such absolute necessity, consequently no implied easement, regardless of the fact that various parties had treated the easement in existence for fifteen years and regardless of the fact that the parking may have been necessary to permit full use of the developed building next store.

The necessary period for adverse use of a prescriptive easement is 20 years, so Hynes was not barred by that statute, and was entitled to take the property free and clear of the easement.

Comment 1: Obviously an awful result.  Certainly Hoffenberg originally sold the parcel at a price that reflected the existence of the easement, and Hynes, in being able to avoid it fifteen years later, likely is getting a considerable windfall, while One Harbor is going to suffer a significant economic burden.  But the editor likes clear legal rules and is willing to accept awful results that stem from application of clear rules, such as appears to be the case here.

Comment 2: The fact that as important a jurisdiction as Florida doesn’t accept such a well established doctrine as the implied easement was news to the Editor, and certainly another object lesson of the folly of attempting to practice real estate law in a jurisdiction in which one is not licensed and trained.

Comment 3: Hoffenberg should have known he had a problem to begin with.  It would be interesting to know why Hoffenberg elected not to document the easement at the time he transferred the property, since the grantee seemed to know all about it.  What was going on there?  Will we ever know??

Readers are encouraged to respond to or criticize this posting.

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