LOCAL PERSPECTIVE: What do music and real estate have in common?
Last week I was asked whether a parcel of land could be legally isolated such that it has no access at all. I got so wrapped up with the exceptions to the rule that I blew it with the answer. This article is to make amends and at the same time make a bigger point about easement rights in property.
The rule is that property can’t be isolated from the rest of the world such that its owner can’t get to it. You may assume the best answer to be that property in Florida can’t be legally isolated from access, somewhere. But please don’t go buying land without deeded access just because you know the rule and assume that something you acquired for almost nothing because it had no access will become far more valuable just because you believe the neighbor can’t stop you from going across his land. The statute is about as clearly written as a textbook in advanced laser physics to most of us. And the case law is even more opaque.
If you buy property with no access, just remember the Hatfield – McCoy feud and assume that if that feud gets played out in court, it will be ugly.
Easements should be a whole class in law school. But it isn’t. There is a reason that, unlike deeds and mortgages, there is no standard form that can be pulled off the shelf to create an easement. Every easement is unique. Some are express rights to use the neighbor’s property for a specific purpose, like an access easement. Some are restrictions against the neighbor using his property in a way that affects you, such as precluding him from building a dock into the water because it diminishes your view (called a “negative” easement), and still others protect an owner’s view to the sun (a solar easement). Some easements “run with the land” and some cease when one or the other property is sold, or when its owner dies or sells his property. Some are written, and are called “express” easements. Others are implied from their context or prescribed by long usage.
However they come about, easements are an interest in land and therefore they can be created in one way or another, and they can be extinguished. Because they are legally an interest in real property, they can be the subject of title insurance, and they should be. The legal description on an easement is important if the exact location of the property to be used is important. It’s essential if the easement is to be recorded and properly indexed. Otherwise, it will be outside the chain of title and may die when the property is sold.
Rights of access, or any other rights that add to the value of a piece of property, or subtract from it, need to be done carefully. The person creating such an easement will think the lawyer tasked with writing it is running up his bill by asking questions he or she ought not bother with. These agreements are hard to change once they get signed and people begin to expect the rights they give. A true real estate professional is a detail person. That’s the way he or she earns his place at the table. Slow down and ask the questions up front. Imagine the possible ways in which the easement can be abused by others over years, and you are indispensable in a real estate closing.
An easement, like all important agreements, should never be drafted without someone else looking at it to confirm that they understand the same thing the draftsman understands. Every easement, like all agreements, ought to pass the test of someone asking, “what are we forgetting”? Are there things that could happen that this easement doesn’t provide for, and should it? Pay the lawyer well who encourages you to focus your attention on things you did not see.
I started this with a question about music, realizing the risk of confirming the opinions of those who believe I spend too much time listening to a different drummer. Music, in my supposition, started with one note. Then someone “invented” Twinkle, Twinkle, Little Star. (Don Anchors was there and could testify). Then, a thousand years later, someone else, (not Don), put one note on top of another and was surprised at the sound of the first musical chord. Then things got out of control, probably in New Orleans, and rhythm, syncopation, and then dancing in the streets were added. Those begat greater sins, I’m certain.
Like music, real estate starts simply, with a deed. Then some of them allow a neighbor to use the driveway. Then we add dimension, such as with a condominium, involving both horizontal and vertical easements that require property owners to depend and rely on adjacent parcels, up and down. Now we have the most sophisticated horizontal reciprocal positive and negative easement appurtenant ever in this county in the form of the Destin HarborWalk Easement. In that easement, each owner is bound together in much more complex ways than the mere ownership by deed would ever have permitted.
By playing together, the harbor owners in Destin have jazzed up every property on the waterfront.
I have to go now. I’m late for a piano lesson.
Mike Chesser is a board certified real estate attorney with Chesser & Barr, P.A.