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Owners should try to work out issues over easement

June 8, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I live in a more rural area of the county, which was developed into 10-acre ranchettes. This development was set up 40 years ago very loosely. There are restrictions on the property, but they are not enforced or followed by the owners. My issue, however, is the easement that runs in front of my property so the neighbor to my east can access his property. To date, this property has been vacant but they are thinking of building a house, and have been bringing in fill. I had improved this area including paving so my kids could have a place to ride their bikes. The trucks coming in have been doing damage, what should I do?

- Kevin S.

Dear Kevin:

Many times, the covenants and restrictions that should govern the property may have provisions dealing with easements and how they can be limited or maintained. You mentioned that the restrictions were recorded 40 years ago. Under the Marketable Record Title Act, restrictions can be eliminated after 30 years. Therefore, it would need to be determined whether MRTA applies to your situation, and whether the documents address your situation. As for the general law on easements, the dominant estate holder (the owner with the power of use over your property) is required to maintain the easement. It would be a question whether pavement is required and it would depend on the circumstances. Since you have already paved the road, you could seek contribution from the dominant estate holder, since your funds have improved their access. However, having a written agreement on maintenance of the easement would be highly preferable. Since you presumably have none here, it would be a matter for a judge to decide whether the previous condition was a danger, in which case you could be reimbursed for your costs. As with most situations, I recommend trying to work out the situation amicably with your neighbor. If you succeed in your negotiation, engage an attorney to assist you with drafting the documents. If you aren't able to reach agreement, seek counsel to determine all of your options with your specific facts.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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