Can an Easement of Necessity Be Terminated if the Benefited Property Has Other Road Access?
QUESTION:
My family owns property in Florida that was originally part of a larger tract divided many years ago. An access easement was created or claimed across our property for the benefit of a rear parcel. However, the easement route has reportedly not been used for decades and has recently been enclosed by fencing.
The owner of the rear parcel also owns an adjacent parcel that has access to a public road. That owner is now asserting a right to use an easement of necessity across our property, despite having potential alternate access through the adjoining parcel and having installed fencing along the area in question.
Can an easement of necessity be terminated or challenged when the property allegedly benefiting from it has access to a public road through commonly owned adjacent land? What factors would determine whether the easement remains valid?
ANSWER: An easement of necessity may be challenged or terminated when the necessity supporting it no longer exists. If the owner of the rear parcel also owns an adjoining parcel with legal, reasonable, and practicable access to a public road, that alternate access may eliminate the basis for requiring access across your property.
Florida recognizes common-law and statutory ways of necessity, but both are based on actual necessity; not mere convenience or a preferred route. A common-law way of necessity generally expires when the owner of the benefited property acquires another practicable outlet to a highway, although the alternative access must be legally available and reasonably usable, not simply permissive or dependent on substantial construction.
The reported decades of nonuse and the installation of a fence may further support the position that no current necessity exists and may be relevant evidence of abandonment; however, nonuse alone does not automatically terminate an express, recorded easement.
Before restricting access, it is important to review the deeds, surveys, title documents, plats, and any recorded easement language to determine whether the claimed right is actually an easement of necessity or an express easement. If the owner continues to assert the claimed right, a declaratory-relief or quiet-title action in the circuit court for the county where the property is located may be appropriate to determine whether the easement remains valid and to clear the title record.