EASEMENTS: What are they and how they affect real property

Easements regularly impact all types of real estate transactions and I am sure many of our readers have run into easement related issues in one form or another along the way.  Determining the scope and validity of an easement often presents issues to parties to a real estate transaction.  At Berlin Patten Ebling, we routinely get questions relating to the creation, scope, and termination of easements.

So what is an easement?  To put simply, an easement is a right of one party to exercise a limited form of possession and/or use of the property of another party. An easement can be affirmative, where a party is able to use the property of another party for a limited purpose, or an easement may be negative, where a party can prevent another party from using their own property in certain ways.  Any property subject to an easement is known as a “burdened property” and any property benefited by the easement is known as the “benefited property.”

Additionally, easements can be held in different ways. For example, an “easement appurtenant” runs with the land, which means that the easement would pass to the next owner of the property benefited by the easement. In contrast, an “easement in gross” is held by a party in his or her personal capacity, meaning that it does not transfer to the next property owner of the benefited property. However, it will remain on the burdened property after the transfer of the burdened property.

When you buy a property with an easement, you take the property subject to the easement, which means that you, as the property owner, will have to accommodate the easement and the benefited owner or property. For instance, in the common case of a shared driveway, the burdened property could not block the access of the benefited owner or property by building a fence that restricted the benefited owner’s use of the driveway if an easement is in place.  This is so even if the shared driveway is located entirely on burdened property!

Significantly, it is imperative for parties to a transaction to understand what easements are in place and/or are necessary to establish when buying real property for a particular purpose. These considerations become even more important when the property owner plans to build and/or add anything to property. In order to properly evaluate what easements are in place, one would need to consult prior deeds, plats, surveys and other documents where easements would be recorded or depicted to determine the nature and scope of any easements that benefit and/or burden the property.  Of course, this process becomes considerably easier with the assistance of a seasoned real estate attorney.

As always, we recommend consulting with your local real estate attorney should you have any questions as to easements and the benefit and/or burden they may place on a particular property.


Berlin Patten Ebling, PLLC

Article Authored by William McComb, Esq.   wmccomb@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.



3700 South Tamiami Trail, Suite 200, Sarasota, FL 34239   P (941) 954-9991  F (941) 954-9992


247 Tamiami Trail South, Suite 201, Venice, FL 34285  P (941) 955-9991  F (941) 484-9992


8130 Main Street, Suite 206, Lakewood Ranch, FL 34202   P (941) 907-9022  F (941) 907-9024

Did you find this real estate law content useful, but need actual legal counsel?

Speak to a real estate attorney!

, ,

Sales Tax on Real Estate in Florida

Sales Tax on Real and Personal Property in Real Estate Transactions

Everyone knows that sales tax isn’t due when you sell a home in Florida, right?  Or is it only sort-of-right?  Or is it only sort-of-right-sometimes-depending-on-XYZ?  Since this is a legal blog, of course it’s the latter. It is certainly true that the sale of Real Property in Florida is not subject to sales tax.  Real…

Obtaining a Variance to Ensure Marketable Title

Many times homeowners are unaware that a physical structure (e.g., pool cage) located on their property violates local or association regulations (e.g., building setbacks, encroachments into platted or association easements, etc).  More often than not, a survey will provide evidence of such violation.  The good news is there is a possible way in which to…

Can Brokers Put a Lien on Real Property for Payment of Commission?

You are the listing agent, and the seller decides to dispute the amount of your commission or breaches the listing agreement and fails to pay your earned commission.  What are your remedies?  We often receive requests from brokers to place a lien for commissions on the real property being sold.  However, this is not an…

It Wasn’t a Problem When We Purchased the Property?

Here is the scenario:  Buyer is getting financing and has a new survey completed since seller couldn’t produce one.  The new survey shows that the screened swimming pool encroaches into the platted drainage and utility easement along the rear property line.  As a result, the closing agent sends a survey objection letter to the seller…

Can Buyer Object to an Encroachment on Prior Survey?

Question: Can the Buyer object to an encroachment shown in Seller’s prior survey, or does the Buyer need to obtain a new survey? The Buyer really needs to get a new survey. Under Paragraph 9(d) of both, the Regular and As-Is Florida Realtors/Florida Bar (“FR/BAR”) contract forms, survey is defined as: “Buyer may, at Buyer’s expense,…