Page 90 - Akerman | 2016 Guide to Doing Business in Florida

An easement may be created by express grant or reservation in a deed of conveyance or other stand-
alone written instrument created for the purpose of establishing the easement. Since it is an interest in
real estate, an easement should be executed with the same formalities as a deed which requires, at a
minimum, a document signed by the grantor in the presence of two subscribing witnesses and a
description of the easement area. The grantor’s signature should also be notarized in order to record the
easement in the official records book of the county in which it is located.

Easements can be exclusive or non-exclusive. An exclusive easement precludes any use of the
easement area by the grantor or its successors or assigns. A non-exclusive easement allows the
grantor to use the easement area for any purpose that does not interfere with the grantee’s rights,
including granting easement rights to others. Non-exclusive easements may set forth in detail such
matters as degrees of exclusivity, responsibility for construction and maintenance of improvements,
compliance with laws and allocation of liability/risk. If the easement does not specify whether it is
exclusive or non-exclusive, it will be deemed to be non-exclusive.

Easements can be perpetual or for a specified duration. An easement will be deemed to be perpetual in
duration unless otherwise specified.

An easement may be used only for its specified purpose. Typical purposes of an easement include the
right to access, drain or locate utilities over, upon or under the property of another.

Under certain circumstances, easements may be established based on the actions of parties without
the need for a written instrument. Prescriptive easements, for example, may be established in a manner
similar to adverse possession, by the open, notorious, continued and uninterrupted use of another’s
land for the prescriptive period.
Implied easements may be created in cases where no express grant or reservation exists. An easement
by way of necessity, for example, is an implied grant or reservation of an easement for ingress and
egress that arises from the supposed intention of parties when one party conveys land that is otherwise
landlocked. § 704.01, Florida Statutes, sets forth the elements necessary to establish an implied
easement by way of necessity.

There are several methods by which an easement may be terminated. Most commonly, an easement
may be released by a contract between the parties to the easement. In other circumstances, an
easement may be terminated by operation of law, through the doctrines of merger or adverse
possession, or by Florida’s Marketable Record Title Act, Chapter 712, Florida Statutes. Additional
judicial doctrines such as equitable estoppel may also serve to terminate an easement.

9.8 Land Use and Zoning
9.8.1 Introduction and Overview

Florida has one of the most complex growth management frameworks in the nation. Florida law
requires that all local governments adopt and maintain comprehensive plans and that those
plans and plan amendments be reviewed by the State for their impacts on important state
facilities and resources and, in some cases, for compliance with state requirements. All
development regulations and all development orders must be consistent with the adopted local
comprehensive plan. The State also mandates regional and state review of large-scale projects
meeting specific development thresholds and has imposed special regulations on certain key
environmental areas. Within this framework, local governments still have the primary role in
regulating development and the role of the State has diminished pursuant to recent legislation.

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