Do Servient Estate Holders Have Any Rights?

What is the name of your state?What is the name of your state? Florida

I need to know about my rights as the servient estate holder of a property easement. Our HOA has easement rights as the dominant estate. My neighbor and I share an emergency vehicle access/pedestrian easement across a driveway, a large area of lawn, and through a landscaped buffer between 2 cul de sac’d residential streets in an HOA. We get along fine with this neighbor. The buffer (landscaped boulders, palm trees, and philodendrons) was installed by the builder 9 years ago. He left a narrow, unobtrusive path between the philodendrons for pedestrians – and it was used occasionally by walkers taking shortcuts between the 2 streets. The buffer remained untouched/unmaintained by the HOA for 9 years.

Enter a third, non-abutting neighbor. She is feuding with our abutting neighbor and has taken a personal interest in this easement for the sole purpose of harassing them. Basically, through her relentless complaints, she managed to convince the current HOA that we placed the boulders and the trees there ourselves to impede walkers. They’ve carted the boulders away, even though we have photos & proof the builder installed it. Now she’s working on chopping down the palms and the philodendrons – while my neighbors and I were at work one day, her husband widened the footpath from 2 feet to 8 feet.

Aren’t I entitled to have this landscaped buffer/easement maintained in the manner in which it was installed when I purchased the home?
I want the boulders back. I don’t mind the walkers – and we accept that it’s a pedestrian easement. It’s the roller bladers, bicyclists, skateboarders and today, golf cart that are making us crazy. Do we have any recourse whatsoever besides a futile petition for abandonment of the easement?

waters quinn said:

What is the name of your state?What is the name of your state? Florida

I need to know about my rights as the servient estate holder of a property easement. Our HOA has easement rights as the dominant estate. My neighbor and I share an emergency vehicle access/pedestrian easement across a driveway, a large area of lawn, and through a landscaped buffer between 2 cul de sac’d residential streets in an HOA. We get along fine with this neighbor. The buffer (landscaped boulders, palm trees, and philodendrons) was installed by the builder 9 years ago. He left a narrow, unobtrusive path between the philodendrons for pedestrians – and it was used occasionally by walkers taking shortcuts between the 2 streets. The buffer remained untouched/unmaintained by the HOA for 9 years.

Enter a third, non-abutting neighbor. She is feuding with our abutting neighbor and has taken a personal interest in this easement for the sole purpose of harassing them. Basically, through her relentless complaints, she managed to convince the current HOA that we placed the boulders and the trees there ourselves to impede walkers. They’ve carted the boulders away, even though we have photos & proof the builder installed it. Now she’s working on chopping down the palms and the philodendrons – while my neighbors and I were at work one day, her husband widened the footpath from 2 feet to 8 feet.

Aren’t I entitled to have this landscaped buffer/easement maintained in the manner in which it was installed when I purchased the home?

**A: show us where in the CC&R's does it state that.
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I want the boulders back. I don’t mind the walkers – and we accept that it’s a pedestrian easement. It’s the roller bladers, bicyclists, skateboarders and today, golf cart that are making us crazy. Do we have any recourse whatsoever besides a futile petition for abandonment of the easement?

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**A: where is the HOA attorney?

Thanks for your reply. My CCRs say the pedestrian and EVAs are the "perpetual maintenance obligation of the HOA without recourse to the City of Riviera Beach and without recourse to the Northern Palm Beach Water Improvement District" (which holds the bonds on the roads.)

My husband and I hold that maintenance is maintenance and installing a sidewalk is construction. Maintenance means maintaining, yes? We don't care if they maintain it the way we bought it, with 2 landscaped buffers and a non-obtrusive path for walkers, protected by landscape rocks that walkers must step over--but that impedes speeding bicyclists, skate boarders, roller bladers, and most recently golf carts.

The HOA attorney is all over the place. The only communication we ever received from him is that we had to "remove the landscape boulders that you installed to impede traffic." And then within a day of receiving that letter, the HOA brought in a backhoe and dug up the boulders. The pest neighbor told the HOA we put them there.

The builder installed the boulders and we had 10-year-old photos to prove it. To no avail. Our attorney even sent them a letter that the boulders were installed by the builder, but they're still on track to construct a sidewalk -- at the behest of the pest neighbor, of course.

They keep proceeding with everything like we don't exist.

waters quinn said:

Thanks for your reply. My CCRs say the pedestrian and EVAs are the "perpetual maintenance obligation of the HOA without recourse to the City of Riviera Beach and without recourse to the Northern Palm Beach Water Improvement District" (which holds the bonds on the roads.)

My husband and I hold that maintenance is maintenance and installing a sidewalk is construction. Maintenance means maintaining, yes? We don't care if they maintain it the way we bought it, with 2 landscaped buffers and a non-obtrusive path for walkers, protected by landscape rocks that walkers must step over--but that impedes speeding bicyclists, skate boarders, roller bladers, and most recently golf carts.

The HOA attorney is all over the place. The only communication we ever received from him is that we had to "remove the landscape boulders that you installed to impede traffic." And then within a day of receiving that letter, the HOA brought in a backhoe and dug up the boulders. The pest neighbor told the HOA we put them there.

The builder installed the boulders and we had 10-year-old photos to prove it. To no avail. Our attorney even sent them a letter that the boulders were installed by the builder, but they're still on track to construct a sidewalk -- at the behest of the pest neighbor, of course.

They keep proceeding with everything like we don't exist.

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**A: you need to get a written legal opinion from the HOA attorney.

The attorney has maintained in the past that he works for the HOA master board, and not for individual homeowners.
Our deed and HOA docs clearly says the HOA is responsible for "maintaining" this easement. (Which they've never done, by the way, in terms of gardening/landscaping.) We just want to know if "maintenance" can be extracted out to sidewalk construction across our lawn.

waters quinn said:

The attorney has maintained in the past that he works for the HOA master board, and not for individual homeowners.
Our deed and HOA docs clearly says the HOA is responsible for "maintaining" this easement. (Which they've never done, by the way, in terms of gardening/landscaping.) We just want to know if "maintenance" can be extracted out to sidewalk construction across our lawn.

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**A: tell that attorney that he is an idiot. The HOA attorney works for the entire HOA of which you are a member.

We'll go ahead and formally request a written legal opinion, then, and see what transpires. It should be interesting. Unfortunately, we're saddled with a Master Board populated by retirees and Napolean wannabes with waay too much time on their hands to make trouble. Thanks for your help.

waters quinn said:

We'll go ahead and formally request a written legal opinion, then, and see what transpires. It should be interesting. Unfortunately, we're saddled with a Master Board populated by retirees and Napolean wannabes with waay too much time on their hands to make trouble. Thanks for your help.

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**A: send your request via certified rrr mail to the Board, not to the attorney.

The servient owner's use of the easement area is subject to easement holder's lawful use, just as long as the use is not inconsistent with the dominant owner's use. See, Tortoise Island Communities v. Roberts, 394 So. 2d 568 (Fla. 5th DCA 1981).

The easement maintenence is the sole duty, obligation and responsibility of the dominant owner, absent agreement to the contrary. See, Morrill v. Recreational Development Corp., 414 So. 2d 590 (Fla. 1st DCA 1982); whether an implied easement, recorded easement, or unrecorded easement. It matters not.

Haynes v. Reynolds, 132 So. 2d 781, 782 (Fla. 1st DCA 1961), says that easement can be expanded and enlarged by the dominant owner, within reasonable boundaries, to accomodate traffic incident to the use of easement in the present day as opposed to the use of the easement at the time the easement was created.

Whatever the servient owner desires the easement use to be by the dominant owner is irrelevant and inappropriate. See, Entzminger v. Thornberry, 734 So. 2d 114, 115 (Fla. 2nd DCA 1999).

Thanks for the info. It's extremely helpful. I'm just curious about the Haynes case you cite. Why would anyone in their right mind agree to grant an easement if the dominant estate could turn around and encroach/enlarge at will?

And what if the "maintenance" the dominant estate decides to conduct ruins the property as opposed to "maintains" it. They received it in one condition and transformed it into another.

In other words, where there once was an unobtrusive 3-foot-wide pedestrian foot path, they've turned it into a 12-foot-wide, unsodded, unmulched mud pit 5 feet from my kitchen and dining room windows that every bicyclist, dog walker, and golf cart now uses to cut across my lawn. The lawn is all rutted now, too. It's a mess.

There's really got to be some kind of recourse/case law against the nuisance/irresponsible "maintenance" of an easement, isn't there?

"Persons in the chain of title are on notice as to easements and limitations created by recorded deeds in their chain of title and they are estopped to claim otherwise, absent additional circumstances." Johnson v. TPE Hotels, Inc., 719 So. 2d 22, 28 (Fla. 5th DCA 1998); citing Furlong v. Fuller and Johnson, P.A., 492 So. 2d 421 (Fla. 1st DCA 1986).

"However, while nonuse may sometimes destroy an easement by prescription, mere nonuse will not destroy an easement by grant." Jewett v. Leisinger, ET AL, 665 So. 2d 1210 (Fla. 4th DCA 1995).

Thanks again for the info. It is helpful and pointing us in some good directions. Except for the "absent additional circumstances" quote, none of these cases address the issue of "maintenance" and the degree to which the dominant estate must "maintain" a piece of property. Who's definition of maintenance prevails? Our docs say that common areas must be maintained by the HOA in "top-notch condition." Maintenance is a subjective term. We're not holding that the easement doesn't exist or that people can't use it, we hold that the dominant estate must maintain it in the manner in which they received it, which was neat, tidy, nicely landscaped, unobtrusive, and disuasive to peeping toms, speeding bicyclists and roller bladers --although not for walkers (who could easily step over the landscape rocks placed there by the builder).

In any event, there are liability issues now for us to worry about with packs of 8-year-olds bicycling and roller blading across a wet lawn between 2 active driveways.

Remember, the troublemakers who carted away the rocks and originally hacked it wide open arbitrarily chose our side of the 24-foot-wide easement because they were trying to annoy us -- not because they wanted to "improve" it.

I guess they've succeeded in annoying us. Now it's our goal to reaaallly annoy them back and recover damages. We need a case law to cite.

A TWENTY-FOUR FOOT WIDE EASEMENT? Recorded? Documented to overwhelming abundance to the hilt; in heavy, constant, and present day usage, and you want to recover damages?

An uphill battle is in your future.

The easement width you mention is a key fact never disclosed.

HomeGuru, an appeals attorney with super human ability, did not know that, and could not have known that.

Twenty-one feet of a twenty-four foot wide recorded easement, dormant for 9 or more years?

You may be better served to hire a surveyor, find the boundary nearest your home, and erect a 6 ft - 600 ft tall privacy fence; increase your homeowner's coverage; and carry a grudge or abandon your grudge against the meddlesome, non-abutting neighbor.

Your trial court judge, if he doesn't already know of the controlling caselaw in this instance, will be informed of them; and of the 50 or so each just like them.

Florida is a "loser pay" state. Should you lose in court, you pay your own attorney and the opposition's attorney also.

From the day your opposition is served with the lawsuit, they will have 30 days not counting the day of service to file their answer with the court. Perhaps another 30 days later, the first hearing. There you have an illustration of a 60 day scenario from the beginning. Within those sixty days, prior to getting in front of your court, a new sidewalk, with footlights and birdbath in the middle may be completed.

"Hacking bushes" - equals "maintainence" - equals "improvements in transition"

You may prevail on the "placement" of the easement if it is out of its boundaries, if not, you will still need that fence.

Just my opinion.

Aaahhh. Details, details. Details are pesky little things, aren't they? Well, it's a 24 foot wide, pedestrian and emergency vehicle access easement -- originally platted for fire trucks to barrell through when/if a 747 fell from the sky and they needed emergency access one day. . . but then the builder either forgot or got greedy and put 3 houses up instead, because the 24 foot easement has 6 palm trees and two driveways (not ours) with parked cars smack in the middle of it, in addition to the philodendrons that they keep hacking. So emergency or not, it won't be our philodendrons impeding access. It will be 6 trees and 4 parked cars.
Anyway, the pest neighbor kept calling the police,fire chief, and city hall to notify them of the EVA "violation" and they basically told her to get a life -- that there's no way they would ever require this access to be an EVA, hence her fixation on the pedestrian part of the easement.
So where's the part of easement law that says we have to accept the liability of this extremely high foot traffic? We clearly bought the property on the condition that we would have privacy (the philodendrons & rocks installed by the builder) and that it would be "maintained" as it was given to us. . . We don't agree to these sudden improvements. They don't improve anything for us. We own a small portion of (about 6 feet) of this easement -- yet it is the sole portion that the pest has fixated on--the rest remains closed/untouched. What is the benefit to us of the mutilated foliage and daily parade of peeping toms? Doesn't our deed give us any right of notification or refusal of these "improvements"? What if the pest woke up one day and decided that the easement needed to be a cement-walled footpath encased in 30-foot-high concrete slabs? Whose definition of "improvement" takes precedence? As I said in the beginning, why would any servient party in their right mind agree to such a ludicrous arrangement?
The fact is, no one can cite any definitive Florida law or case such as this -- even our attorney was left scratching his head.
Thanks for your advice. I suppose we will put up a fence, eventually. Seems a shame, though.

waters quinn said:

Aaahhh. Details, details. Details are pesky little things, aren't they? Well, it's a 24 foot wide, pedestrian and emergency vehicle access easement -- originally platted for fire trucks to barrell through when/if a 747 fell from the sky and they needed emergency access one day. . ..

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The McCorquodale court, in McCorquodale v. Keyton, 63 So. 2d 906 (Fla. 1953), held that the recorded plat even bound the creator of the plat himself to the plat as it was recorded. There are other newer cases that have the same result.

waters quinn said:

...but then the builder either forgot or got greedy and put 3 houses up instead, because the 24 foot easement has 6 palm trees and two driveways (not ours) with parked cars smack in the middle of it, in addition to the philodendrons that they keep hacking. So emergency or not, it won't be our philodendrons impeding access. It will be 6 trees and 4 parked cars. Anyway, the pest neighbor kept calling the police,fire chief, and city hall to notify them of the EVA "violation" and they basically told her to get a life -- that there's no way they would ever require this access to be an EVA, hence her fixation on the pedestrian part of the easement.

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The city, and those others mentioned, not being a court, can offer their opinion freely, and obviously enforce what they choose to enforce. The court however is bound to follow and honor and uphold the law. The law is clear in Florida, that the recorded instrument is to be honored in its entirety, unless and until dissolved or ammended by agreement of both the dominant and servient owners. The palm trees are actual violations of the easement that the court will find. The parked cars, inhibiting EVA access will also find themselves violating the easement...as it is recorded. Leaving the court no other choice. Oddly enough, you are complaining of the clearing of the easement when in fact in current Florida law, the dominant owner is violating the recorded instrument (where allowing the palm trees to remain within the easement). See, H & F Land v. Panama City-Bay County Airport and Industrial District, 736 So. 2d 1167, 1170 (Fla. 1999), where the muniments of title (the WORDS themselves...appearing ON THE FACE of the document itself, within the four corners of the instrument, are exclusive and controlling the issue).

waters quinn said:

So where's the part of easement law that says we have to accept the liability of this extremely high foot traffic?

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You received and accepted the deed.

waters quinn said:

We clearly bought the property on the condition that we would have privacy (the philodendrons & rocks installed by the builder) and that it would be "maintained" as it was given to us. . . We don't agree to these sudden improvements. They don't improve anything for us. We own a small portion of (about 6 feet) of this easement -- yet it is the sole portion that the pest has fixated on--the rest remains closed/untouched. What is the benefit to us of the mutilated foliage and daily parade of peeping toms?

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See, Entzminger, above.

waters quinn said:

What if the pest woke up one day and decided that the easement needed to be a cement-walled footpath encased in 30-foot-high concrete slabs?

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In Florida, the wall can be 3,000 feet (or more). and the concrete slab, 30,000 feet (or more). All within the recorded easement boundaries. Subject to local height restrictions of course. Accomplished by the dominant owner. Just so long as the servient owner's access and use is not inhibited.

The "pest" as dominant owner? That is where your attorney needs to focus.

waters quinn said:

Doesn't our deed give us any right of notification or refusal of these "improvements"?

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Johnson,(above) shows "in the chain of title", that you are on notice of the recorded easement. Your actual deed showing that recorded easement, is indestructable notice. "Refusal of those 'improvements'", is not an option you have available. Objecting to them is another matter. See Section 704.01(2) in current Florida Statutes.

To contrast this issue, the servient owner in Florida law, is barred and estopped to maintain or improve the easement for the dominant owner's benefit. Despite how much the servient owner desires to do so.

waters quinn said:

Whose definition of "improvement" takes precedence?

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It is hard to defeat the dominant owner's definition.

waters quinn said:

As I said in the beginning, why would any servient party in their right mind agree to such a ludicrous arrangement?

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This may hurt just a bit, but "ludicrous" is the subjective term here in the eyes of the law and of the court.

waters quinn said:

The fact is, no one can cite any definitive Florida law or case such as this -- even our attorney was left scratching his head.

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There is abundant case authority precisely as in your situation. For example, if you read Morrill,(indicated previously), you will find that it is the dominant owner's same duty and obligation to IMPROVE this same easement. Morrill, is not the only case of its kind.

The best example of just how well covered this topic is, for the benefit of your head-scratching attorney, may be found to be the case of Mr. and Mrs. Parlato. Beginning in 1991 or 1992, multiple appeals, by multiple interested parties have been taken. Homeowners Association, easement, improvements, duties, responsibilities, rights....all are discussed in detail, many times.

First, see, Parlato v. Secret Oaks Owners Association, 689 So. 2d 320 (Fla. 5th DCA 1997);

Secret Oaks Owner’s Association v. Department of Environmental Protection, et al, ___ So. 2d ___ ,rehearing granted, 704 So. 2d 702 (Fla. 5th DCA 1998), (the Parlatos were interveners in the case below, on this one).

Parlato v. Secret Oaks Owners Association, et al, 793 So. 2d 1158 (Fla. 1st DCA 2001).

waters quinn said:

Thanks for your advice. I suppose we will put up a fence, eventually. Seems a shame, though.

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A shame perhaps, conditioned by the "good old days" of the previous nine years as the way things were. In law, change here as described is permissable. Once in court, change will be mandated...the removal of the palm trees for example...will be ordered of the court.

There is one point here that may be of help. Florida also has Section 725 in its Florida Statutes, the Statute of Frauds. Under this section, the HOA, can be held to "specific performance" of the terms of a "contract" to keep and maintain this easement in "top-notch condition". "Top-notch condition", being the subjective term again, may be seen by the court as superior than just "maintenence". If this "top-notch condition" is contained only in a sales brochure, the statute of frauds will not apply. It must be in, or referenced in and to a contract, in order to be enforced. Perhaps another avenue to approach?

One last thing. As the servient land here, is YOUR lot within the HOA. The HOA attorney is your legal combatant, your lititgious enemy. You would certainly be his litigious enemy. The HOA attorney represents the HOA's interests (of which your are indeed a member). It hurts, to be sure, but the HOA's interests are the "pack of 8-year olds...the walkers...the skaters...and the golf carts and their drivers", not just YOUR exclusive, individual gripe or legal interest. In all likelihood, you can set an appointment with him and discuss at length, any OTHER easement within the HOA. Just not the easement over and across and recorded on YOUR lot. Hope that helps.
Good luck.