In short: In Myers v. Garber (3d DCA, July 20, 2016), Florida Keys neighbors fought over a deed granting an “exclusive perpetual easement” over a driveway and waterfront strip. The Third DCA affirmed with a citation to Gelfand v. Mortgage Investors, signaling that the word “exclusive” alone does not shut out the owner who granted the easement.
What the Record and Arguments Showed
The appellants were John F. Myers and others; the appellees were Paul Garber and others. The case came from Monroe County Circuit Court.
According to the video description and argument, neighboring owners of a waterfront compound negotiated over a driveway strip and a waterfront strip. One wanted a quitclaim; the other wanted to keep the land for setback purposes.
They settled on an instrument granting an “exclusive perpetual easement” that put maintenance and indemnity duties on the easement holder.
Years later, after the burdened lot was sold, they disputed whether the servient owner could still use the strips. These facts come from the argument, not a written opinion.
The Decision
The Third District Court of Appeal affirmed per curiam with a citation to Gelfand v. Mortgage Investors of Washington, 453 So. 2d 897 (Fla. 4th DCA 1984) (Case No. 3D15-1093, July 20, 2016; Judges Shepherd, Emas and Scales).
A citation PCA has no opinion, but the cited case signals the reasoning. In Gelfand, the court held the word “exclusive” in an easement grant was ambiguous, allowed evidence of the parties’ intent, and affirmed a finding that the easement did not exclude the servient owner. Florida law presumes easements are non-exclusive.
Like any PCA, Myers sets no binding precedent, and which side prevailed below was not confirmed from the decision itself.
The Law
An express easement is construed from its language and the parties’ intent. The servient owner keeps the right to use the land in ways that do not unreasonably interfere with the easement holder’s use.
If a grant is ambiguous, including the word “exclusive,” courts may consider extrinsic evidence of what the parties meant.
Lessons
- If you mean to exclude the owner who grants an easement, say so expressly. “Exclusive” alone may mean only exclusive against third parties.
- When the land is really what the buyer wants, a fee conveyance may be better than an easement.
- Maintenance and indemnity terms do not by themselves make an easement exclusive against the grantor.
- Buyers of burdened lots should read recorded easements closely before closing.
Watch the Oral Argument
This is the recording of the oral argument. Because the decision is a citation PCA, the facts and arguments are context, not the court’s reasoning. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Does an ‘Exclusive’ Easement Lock Out the Owner Who Granted It? | Myers v. Garber, 3D15-1093
Go Deeper
- No Written Easement, No Parking Access: Condo Loses Driveway Claim (Miami Beach Club v. RDR)
- A Chain-Link Fence Since the 1950s Settled a Key West Boundary (Kaczmarek v. Kruer)
- Easement Disputes in Florida: Utility, Access, and Prescriptive Easements
Frequently Asked Questions
What is an exclusive easement in Florida?
An easement whose holder can exclude others. Courts presume easements are non-exclusive, and “exclusive” may exclude only third parties, not the grantor.
Can the property owner use land subject to an easement?
Generally yes, as long as the use does not unreasonably interfere with the easement holder’s rights.
What is a citation PCA?
A per curiam affirmance that cites a case, signaling the reasoning without a written opinion.
How should an easement be drafted to exclude the owner?
State expressly that the grantor and successors may not use the area, or convey the land itself.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate, landlord-tenant, condominium and property disputes from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Statutes and court rules are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
