A critical aspect of managing a real estate transaction is ensuring that the buyer knows about and understands any easements on the property. The easements on a real estate title can significantly affect how the owner can use and alter the property. If an easement is not discovered and communicated, the owner risks legal and financial liability.
One of the most essential roles of a real estate agent is to help their clients understand easements. In addition, they can connect their clients with professionals who will ensure that all easements are acknowledged before the sale is finalized. Before you can accomplish either of these tasks, it is necessary to understand Florida easements yourself.
Types of Easements on Florida Property Titles
There are two primary types of property title easements: affirmative and negative. Affirmative easements allow specified non-owners to perform specific tasks on the property. In contrast, negative easements bar owners from making specific alterations or performing particular functions on the property.
Florida law permits a variety of both affirmative and negative easements. Common examples of affirmative easements include:
- Utilities: The right of the municipality to perform utility maintenance and work on the property.
- Driveways: The right of a neighbor to use a shared driveway to reach their property.
- Sidewalks: The right of the public to use municipal sidewalks and paths on private property.
- Drainage: The right of other owners to direct stormwater into a sewer drain on private property.
Negative easements are less common but still exist. They are more frequent in master-planned neighborhoods and locations with HOAs. Examples of negative easements on property titles are:
- Height limits: A prohibition against building above a certain height to maintain views for other owners.
- Conservation: A prohibition on altering certain parts of the property out of their natural state.
- Water: A prohibition on blocking water sources or streams that would flow onto other properties.
In addition, Florida property title easements may be “express,” “implied,” or “prescriptive.” An express easement is created by a written contract or court order. These are the strictest types because their terms are clearly written out.
An implied easement is not formed through written documentation. Instead, it exists when it is clear one is intended to exist. For example, if a development has sidewalks along properties’ edges, but no specific easements are recorded for these paths, the easement is implied. An implied easement may become express in the future if the matter is taken to court.
Finally, a prescriptive easement is created through adverse possession when a non-owner uses part of a property in an obvious way, and the owners do not take action to stop them. For example, a neighbor who uses a back corner of a property to camp so frequently that they build a permanent campfire and grill may win a prescriptive easement on that part of the land. This is not documented but may be defended in court under Florida law.
Only express encumbrances will appear in record searches. However, an experienced title attorney can advise you on whether implied, or prescriptive ones are likely to exist.
The Risks of Undiscovered Easements
Easements can significantly impact how a buyer can use the property they purchased. Realtors must help their clients understand the encumbrances of a property’s title by working with experienced attorneys. Failing to do so can impact both the client and the realtor.
For example, if a buyer purchases land with the intent to build a two-story home, an undiscovered encumbrance barring them from building structures taller than 15 feet would be a problem. Similarly, if a buyer is looking for privacy, an easement granting neighbors the right to drive on their land would make the property significantly less valuable to them.
In addition, realtors may also have legal risks if they do not do their due diligence for their clients regarding easements. As a real estate agent, it is your duty to request and read preliminary title reports and ensure that a complete title search is performed by qualified professionals. Failing to do that means you cannot advise your client on the benefits or drawbacks of a property and may be considered a breach of fiduciary duty or even constructive fraud.
At best, failing your client this way damages your professional reputation. At worst, it can affect your license. This is why working with trusted title professionals is critical when performing all real estate transactions.
Protecting Clients From Easement Issues as a Real Estate Agent
An unexpected encumbrance is the last thing you want to appear on your client’s title after a purchase is finalized. As their agent, you can protect your clients from undiscovered easements by making sure to do the following:
- Build relationships with trusted real estate attorneys. The best title professionals are trained real estate attorneys with experience in closing services. Working with skilled lawyers ensures the title reports you receive are comprehensive in scope and depth.
- Do your due diligence. When you receive information about a title, take the time to read and understand it yourself, then communicate what you learn with your client. It is better to explain to your client information they already know than to risk a misunderstanding.
- Ensure your clients receive quality title insurance. As some easements may not appear on a title search, title insurance is invaluable. Experienced attorneys can assist you with finding the best insurance policy for every real estate transaction.
At Isriel Ponzoli, P.A., our experienced property title attorneys are dedicated to providing proven, personalized title and closing services in Miami and the surrounding areas. We give every transaction our full attention, performing in-depth research to ensure that all potential express easements are reported during the title search. We also work with our partners to provide title insurance for real property transactions to protect your clients if an implied or prescriptive easement is discovered. Learn more about how our Florida title attorneys simplify the closing process for real estate agents by scheduling your consultation today.
