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Easements by Necessity – Goldman v. Lustig

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In the recent case Goldman v. Lustig, Case No. 4D16-1933 (Fla. 4th DCA January 24, 2018), at issue was whether Unit Owners had the right to use and access a dock located behind an adjacent townhouse owner’s waterfront property.

The Unit Owners’ complaint sought a declaration of their rights to use the dock, as well as a permanent injunction to prohibit the adjacent property owner from preventing their use of the dock. The complaint also alleged that the adjacent property owner severed his riparian rights (simply defined as the method of allocating water among those who possess land along its path) to a portion of the dock when he entered into a quitclaim assignment with the Association. The adjacent property owner filed a countered seeking a declaratory judgment that would affirm his rights to the dock, and a permanent injunction to stop the Unit Owners from both using any portion of the dock and accessing the dock through his property. The Court found that the assignment was valid, as both the Unit Owners and the adjacent property owner executed the assignment, and riparian interests may only be severed by an express bilateral agreement (a reciprocal arrangement between parties which promises to do something in exchange for what the other is doing).

However, the central issue in the decision was whether the Unit Owners had a right to access the dock through the adjacent property owner’s land by way of an easement by necessity. In Florida, an easement by necessity is granted when there is no other accessible right-of-way to your own land except by crossing over someone else’s land.

While the Court held that the Unit Owners were entitled to use a portion of the dock, it explained that they were not entitled to an easement by necessity in order to access the dock, as they failed to demonstrate an absolute need for such easement. Although accessing the dock by land required the Unit Owners to cross the adjacent property owner’s land, the Court reasoned that they were not entitled to an easement by necessity, as they could also access the dock by water.

The Court provided that because the Unit Owners live on waterfront property, they could find an alternate way to access the dock. For instance, the Unit Owners could build their own access pier, which the Court considered to be a “reasonable and practicable way of egress or ingress.” The Court stressed that factors such as cost or inconvenience are not determinative for purposes of obtaining an easement by necessity.


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