“Free And Unencumbered Access” Does Not Necessarily Preclude A Gate

POSTED ON NOVEMBER 30, 2010 BY JACK

One might think that if one receives an easement granting "free and unencumbered access" to one's property, one would not have to abide by a gate put up by the grantor of the easement.  One would be wrong if one thought that. In the recent Florida appellate case of Gilland vs. Heiderich, that is just what the easement said.  Nevertheless, the grantor put up an electronic gate as a redundant measure to insure that her horses would not wander onto the highway.  Litigation ensued, along with typical neighborly shenanigans - another gate was installed along side the electronic gate; that gate was chained open; then it was chained shut; a deputy sheriff had to come out several times to settle the squabble. The easement owner argued that free and unencumbered access meant an open and unobstructed pathway.  The court thought otherwise.  Citing a 1997 decision of a sister district court of appeal, the judges said that so long as the gate does not interfere unreasonably with the right of way, it can be built.  The owner of the land burdened by the easement can still use that land, so long as that use does not unreasonably interfere with the agreed-upon use of the easement.  The court concluded: "To insure certainty, parties who want to keep an easement free of gates or other obstacles can specifically express that intention in the document.”

Posted in Articles | Tagged: Litigation