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What is the proper manner of recording an easement?
Anonymous1 views2 answers
We purchased a parcel that had a sort of DIY split and easements from a larger parcel in its past. The owner who did the split recorded the egress/ingress easements in the deeds of the burdened parcels ("less the east 25 feet for ingress/egress"). I understand that ingress/egress easements are governed by Florida statute and local zoning laws so these are theoretical questions only - for the purpose of understanding.
1) If the easement is in the burdened parcel's deed, what is to keep you from just quitclaiming it to yourself without the easement description?
2) If the easement is in the burdened parcel's deed, how would you know what parcels are the beneficiary, who is to say that the side neighbor wasn't the beneficiary also?
Easements can be created by an express grant or by implication. There are numerous statutes and common law principles involved in the creation of easements. The answers to your questions depend on the specific facts of your case. Generally, because of their complexity and all the legal issues involved, easements should not be created by DIY documents. Such documents frequently create more problems than they solve. To make sure that your rights to ingress and egress are adequate, that they will run with the land when you sell it, and that you can continue to use the easement as long as you own your property, you should have the documents creating your easements reviewed by an attorney experineced in the law of easements.
You raise good questions, and those questions explain the need for licensed Florida real estate attorney. As I'm sure you know, it is more often much more costly to fix a DIY than do it properly with professional help in the first place.
It is difficult to fully answer your question, but I will say this, as it applies in many DIY situations and probably to yours: there is never a problem until someone gets angry or the next owner steps into the shoes of an original party. This situation will most likely go to court somewhere down the line (and be costly) if it is to enforced without willing parties.
