May 2007

GELFAND & ARPE, P.A.

MEMORANDUM TO CLIENTS

Neighbors frequently argue over the right to use each others= property. These disputes often involve the use of private roads and gates, matters that are of interest to many associations. Two recent Florida appellate court decisions address issues of interest that arise when the owner of a private road installs a gate across the road, either restricting access altogether or merely limiting access.

REAL PROPERTY: GATE CAN STAY DESPITE EASEMENT

The first decision arose after a landowner installed a gate over a private road in which an adjoining landowner had a perpetual easement. In the past, courts had frowned upon gates impeding easement use. In what seems to be a break from the past, the court ruled that an electronic gate would not unreasonably interfere with the easement holder=s right of passage and allowd the gate to remain, at least temporarily.

In Sandlake Residences, LLC v. Ogilvie, 32 Fla. L. Weekly D739 (Fla. 5^th DCA, March 16, 2007), the court indicates that the Ogilvies owned forty acres of land. In 1993, the Ogilvies sold the front part of their land located between their home and Turkey Lake Road. Because the Ogilvies= home no longer had direct access to Turkey Lake Road, the purchaser granted the Ogilvies a non-exclusive perpetual easement for pedestrian and vehicular ingress and egress over a permanent access road that the purchaser was going to build on the purchaser=s property.

The purchaser then installed a gate across the permanent access road where it intersected Turkey Lake Road. The purchaser also installed speed bumps across the permanent access road.

The Oglivies sued the purchaser claiming the gate and speed bumps violated the easement. The Oglivies also moved for a temporary injunction to require the purchaser to remove the speed bumps and deactivate the gate. The trial court granted a temporary injunction requiring the purchaser to leave the gate open and to remove the speed bumps.

On appeal, the purchaser argued that the gate did not unreasonably interfere with the Ogilivies= right of ingress or egress because the gate could be opened by either a remote opener, a cell phone, or a drive-up access code. The appellate court agreed, concluding that under the circumstances, the gate would not unreasonably interfere with the Ogilivies= easement rights. Because the gate would not unreasonably interfere with their rights, the court ruled that the Ogilivies did not meet the high burden for a temporary injunction by demonstrating a substantial likelihood of success on the merits. Therefore, the appellate court vacated the injunction.

Thus, there is a potential for electronic gates being allowed on easements. Of course, the Adevil is in the details@ as to the exact easement language and how easily the gate operates.

REAL PROPERTY: GATE CAN STAY WITHOUT EASEMENT

In the second decision, landowners tried to prohibit the installation of a gate across a private road by claiming they had the right to use the road because they had been using the road for many years. In summary, the court decided that just because you have used a road owned by someone else to access your property does not necessarily mean you have the right to use the road forever.

In Dan v. BSJ Realty, LLC, 32 Fla. L. Weekly D809 (Fla. 3^rd DCA, March 28, 2007, a Florida appellate court ruled that tenants and owners of warehouses did not have a prescriptive easement over a twenty-five foot strip of land owned by an adjoining landowner. A prescriptive easement is the right to use another=s property which is not inconsistent with the owner=s rights.

For over thirty years, the tenants and owners of warehouses next to BSJ Realty=s property used the private roadway located in the rear of BSJ Realty=s property to gain access to the rear of their warehouses. In 2002, BSJ Realty built a fence and gate across the road restricting its neighbors= access to the rear of their warehouses.

The owners and tenants of the warehouses sued BSJ Realty claiming they were entitled to a prescriptive easement over the strip of land based upon their continuous use of the private roadway for a long period of time. The trial court found that the plaintiffs failed to prove all the elements necessary for a prescriptive easement and entered judgment in favor of BSJ Realty.

The Florida appellate court agreed with the trial court. The court noted that to be entitled to a prescriptive easement, the claimant must prove:

* Actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years.

* The use has been with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner.

* The use related to a certain limited and defined area of land.

* The use has been adverse to the lawful owner.

In other words, the use of the land has to be without the permission of the owner.

The appellate court pointed out that the evidence showed that owners who sold the roadway property to BSJ Realty allowed people to freely use the private roadway to access the rear of the warehouses. ABased upon our review of the record, we agree with the trial court that the plaintiffs failed to establish that their predecessors= use during the prescriptive period was adverse, under claim of right, and inconsistent with the lawful owners= use and enjoyment,@ the court stated.

Perhaps the moral of the story is that Florida courts are hesitant to allow people to acquire rights to use someone else=s property and will tend to resolve doubts in favor of the lawful owner of the property.

FIRM NEWS

The firm=s offices will be closed Monday, May 28, 2007 in observance of Memorial Day.