Can A Landowner Block A Right Of Way? Easements vs. Rights-of-Way
Can A Landowner Block A Right Of Way? Easements vs. Rights-of-Way
What is Right of Way?
A right of way is a legal easement that allows public access over private property. It’s also sometimes called a “right-of-way through” or rather than “over.”
Rights of way are most commonly associated with land near highways and roads, where the public needs to have access for emergency use.
The landowner doesn’t have an absolute right to deny the public use of the land, but can do so if reasonably and properly marked and/or posted.
Types of rights-of-way
There are two types of rights-of-way: Implied and Express.
Implied right-of-way
An implied right-of-way exists if there is evidence that land was once used for travel, such as a frequently traveled path or historical use.
There is no deed record to prove this, only the court case of private ownership. An implied right-of-way is not a permanent easement but expires when no longer used.
A common type of implied right-of-way is one that allows short jaunts on private property, even if it doesn’t directly connect with a road. (Rather than “navigating” on another’s open property). This is called “right-of-way by necessity.”
For example, when a public road is no longer maintained or no longer exists on a particular piece of private property, the owner can create an implied right-of-way by necessity.
This may be done by plowing a path through the woods, so long as the actual boundaries of the private property are not crossed.
The length of this right-of-way varies greatly depending on circumstances. It can be as small as three feet for a single step to as long as several hundred yards.
Express right-of-way
An express right-of-way is an easement granted by deed. It’s often used when a developer deeds property to a county or municipality for future development, as encouragement for building in the area.
These rights of way also don’t expire and are not revoked unless otherwise stated within the deed. Express rights of ways can be added to later on by a county or city through an ordinance process.
Express rights-of-way are those specifically recorded in a deed or plat map.
Express right-of-way is a permanent easement. The landowner may agree for the public to use the land, and agrees to allow the public the right of passage. This can be through a fee, such as a pass or permit, or by yielding part of their land.
For example, if you have a front yard filled with weeds and you let out your neighbor to mow them, you have an express right-of-way.
Easements vs. Rights-of-Way
An easement is the right to use the land of another person for a specific purpose. It can affect the entire property or just a portion of it.
A right-of-way is a type of easement that allows someone to travel through the land of another person to get somewhere else. It can be given to a single person, a group of people, or the general public.
Easements are classified into two types: easements in gross and easements appurtenant.
Gross easements are granted to individuals or businesses for a specific purpose. If property ownership is transferred through sale or other legal methods, a new easement agreement must be made.
Easements appurtenant are attached to the land, not the person. Rights-of-way are typical of this type. This is because they are passed on together with the property.
Is it possible for a property owner to obstruct an easement?
Easements are interesting because they allow certain people access to property that they do not own. An easement on your property means that certain businesses, such as utility companies, may gain access to it if necessary.
There are also easements that permit the construction of driveways through a person’s land in order for the owner to gain access to their home or other pieces of property. This is why it’s critical to always check for easements before buying a piece of land.
While some people may not be bothered by this legal situation, it may be vexing for others. In most cases, a property owner cannot obstruct an easement that has already been granted.
What to do if a property owner tries to obstruct an easement
Even though property owners are not permitted to obstruct easements, they may attempt to do so. These scenarios can be quite aggravating, especially if the easement permits access to your home.
It’s critical to remain cool, though, since you don’t want to start a dispute with the property owner that might lead to physical violence.
It is essential to talk with an attorney or another form of legal counsel to see what they recommend.
Because easements do not expire over time, a property owner has no legal recourse to prevent you from utilizing this parcel of land. However, if they have chosen to do so, it may be advisable to let an attorney handle the situation.
Can a landowner block a right of way: Instances?
Can a landowner block a right of way? The answer to this question is complicated. In general, a right of way is a right to use someone else’s land for a specific purpose
For example, a right of way might allow a person to walk across someone else’s land to get to their house. A landowner cannot typically block a right of way, but there are a few exceptions.
For example, a landowner might be able to block a right of way if the right of way is not clearly defined or if the landowner needs the land for their own purposes.
If the right of way is an easement, the landowner cannot block it. An easement is a right of way that is given to a specific person or entity, such as a utility company. If the right of way is not an easement, the landowner can block it, but may be subject to a lawsuit.
The landowner can block a right of way by erecting a fence or other barrier. If the right of way is blocked, the public can file a lawsuit to have the barrier removed.
Following the Florida Supreme Court, there are two main cases defining the scope of a public’s rights of passage:
Powell v. State (977 So.2d 1188 [Fla. 4th DCA 2006])
In Powell v. State, the court was asked to decide if a county may levy a fee on public access over private property that is already being used as a public right-of-way.
This is a subject of common fear and misunderstanding, as many people believe that if an easement has been marked by the state, then it automatically grants permission to use that land. This is not the case.
In Powell v. State, Judge Verniero ruled that if a public right of way already existed on private property and the landowner allowed the public access through proper channels, there is no longer any claim to a fee from collecting it from those who come to use their easement.
Fees are allowed under the following situations:
- Right-of-Way Marked by State or County
If there is a state or county right-of-way that clearly shows you’re allowed to use the land, then you cannot be charged a fee. If the right of way is located on private property, then you cannot be fined for failing to pay the fee if you still use it.
- A Temporary Right-of-Way
If a right of way is established by local law, then the public may be required to pay a fee.
- A Fee for Using Property Without the Owner’s Permission
If there is no right of way and you are not granted permission to use the property, then it’s at the owner’s discretion to charge you a fee or not. If they do allow it, then they must have it in writing.
- A Fee for Using Private Property Without the Owner’s Permission
If you have lost a right of way and are using private property without permission, then the owner may charge a fee, but they must have it written in writing.
In Powell v. State, the court ruled that a fee is not required if there is already a right-of-way established by state or county regulation, unless the right has expired or been revoked.
The court further ruled that if there is not already a right-of-way by the state or county, then it’s at the landowner’s discretion to charge for access.
State v. Danno (876 So.2d 14 [Fla. 4th DCA 2004])
In State v. Danno, the Supreme Court of Florida was asked to decide if a county can impose a fee based on a public right-of-way that was created by ordinance.
In this case, the court ruled that if there is not already a state or county right-of-way, then it cannot be revoked and the cost of use is up to the landowner.
In “State v. Danno” the court ruled that if there is not already a right of way by state or county regulations, then it’s at the landowner’s discretion to charge for use.
If there is a public right-of-way by ordinance that states you can use the property and has existed for five years or more, then you do not need to pay an access fee.
It’s important to note that even if you use a public right-of-way for a fee, that does not give you an easement that allows you to enter private property without the owner’s permission.
For example, a sign on the state or county line saying “You have entered a public right of way.” This means absolutely nothing until there is an actual easement in place granting rights of passage.
If you are using the easement to access private property, then you must have the owner’s permission before doing it.
In summary, you can use a public right of way without a fee if there is already an easement established by the state or county. If there is no easement, then it’s at the discretion of the landowner to grant access or charge a fee.
Right of way through private property
For this reason, it’s important to check the registry in order to determine if there are any public easements on the property before buying a home or other piece of real estate.
If there is already an established right-of-way on a property, then you do not need to pay a fee. Additionally, if you are allowed to use the right-of-way and have permission from the owner, then you cannot be charged for using it.
In Florida, you have the right to use public rights of passage as long as there is an established right-of-way by state law. Therefore, if there is a public easement on a parcel of land, then you do not need to pay a fee.
If there is no right-of-way by law and you are using private property without permission, then the owner can charge you a fee.
Can a property owner charge you a fee to use their private property?
In order to fully understand the law, you may wish to speak with an attorney who specializes in easements, access, and other similar cases in your jurisdiction.
If there is a right of way by state or county ordinance then you do not need to pay a fee. However, if there is no right-of-way by law or if it has expired, then the owner can charge a fee for access.
When it comes to easements, homeowners can claim easements on their property at any time. There are no restrictions on the creation of an easement by a homeowner or landowner in Florida. However, there is always a fee for using the easement that must be paid by those who want to use the easement.
Although you may have an established right-of-way for public access through private property, you only need permission from the owner if you are entering their property without permission.
Most of Florida’s public rights-of-way are allowed by law. There are, however, many easements that are not approved by any legislation. Even though such easements may be allowed by the owner, there is still a fee that you must pay to enter private property without permission.
In Florida, there is no required fee when using a public right-of-way to access private property. However, this does not mean that you are completely free to enter the property without permission. You must have permission from the owner before doing so.
The Florida real estate code provides that you are allowed to use a public right-of-way to access the parcel of property located on either side of a public roadway.
If there is an established right-of-way by state or county law, then you do not need to pay a fee. The only exception is if there is no right-of-way by law and private property owners are allowed to charge you a fee for access.
FAQs
Can you obstruct a right of way?
It depends on the situation. In general, you cannot block a public right of way or infringe on another’s right to use it, unless the landowner decides otherwise. A public right of way is not a right to trespass on private property, so blocking it would require permission from the landowner first.
Can I be charged for using a private property easement?
The answer to this question is probably different from person to person. It all depends on the agreement you’ve reached, and whether or not the property owner has allowed you access under those terms.
In a situation where the property owner has allowed you to use their easement without paying a fee, just remember that they have every right to do so, regardless of state or local laws. If they don’t tell you otherwise, then assume that you have no cause to complain.
You should always be polite and courteous when requesting access to private property of another person through an easement.
Who owns the right of way property?
A right of way easement is a legal right. When another person is granted an easement of right of way, the property owner’s rights are limited.
An owner may not utilize some of his or her property rights for the advantage of the person who was granted the right of way easement.
Can I put a gate across a private right of way?
This is a very tricky question. You are allowed to put a gate across a right of way, and in the right circumstance, that gate may be locked.
However, that gate must be unlocked and easily accessible at all times. Putting up a locked gate without permission from the landowner is considered trespassing and you could be charged as such.
Can a taxpayer use state or county property easements?
Generally, no. However, there are a few exceptions to this rule. State law allows a county board of county commissioners to grant an easement on state highway right-of-way to potential users (such as businesses and residents) who will provide public benefits in exchange for the right-of-way. This type of easement is called a “use easement.
Can a right of way be sold?
In Florida, the right of way easement is owned by the state, county or municipality that created it. When there is no specific grant of rights in a deed or other legal document, the property owner owns what’s called an “easement of way” that gives others the right to use his or her land for a certain purpose.
At any time, an owner can sell his or her easement of ways and usually will not have to pay a fee for doing so.
Who is responsible for the maintenance of a private right of way?
The owner of land subject to a private right of way (“the servient owner”) is under no responsibility to maintain it under common law.
It is up to the person who has a right to use the road (“the dominant owner”) to get it repaired.
Can you close a right of way?
Only one of the following reasons can a public right of way be relocated or closed: It is required to allow for development (if planning permission has been granted) The landowner/occupier gains from the diversion. The public gains from the diversion.
Can a Neighbor block a right of way?
In common law, any serious interference with a right of way is considered a nuisance. If the landowner (or “servient” owner) restricts the right, the owner of the right (known as the “dominant” owner) can move to court for an injunction and damages.
What is the difference between a right of way and a right of access?
The primary distinction between a servitude and a right of way is that a servitude may include more than just access. If the servitude is awarded in writing, it might theoretically include nearly any conduct performed on the granter’s land.
How long does a right of way last if not used?
In most cases, once an easement or right of way has been created, it will last permanently unless it is extinguished or surrendered.
Can I remove a fence blocking my right of way?
With an easement, your mother can demand that your neighbor remove the fence that is blocking her right of way. The fact that access has been restricted for two years is likely to be immaterial.
She might either dismantle the barrier herself or seek a court injunction compelling the neighbor to do so.
Does a right of way have to be registered?
In most cases, no. So long as the easement is created in writing and describes a particular area, it carries all the legal benefits of a grant by deed.
Can a person ever exercise their legal property rights while having an easement?
Yes. If you are prevented from exercising your legal rights or property rights through a right of way (such as planting trees or building a fence on your own property), contact an attorney for assistance regarding what you can do about the interference with those rights.