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A Case of Property Rights: Easements and Utilities

November 2, 2015 - 3:00pm


Recently, there has been discussion of legislation filed during Florida’s 2015 General Session that, at its core, protects property rights, particularly the rights that accompany easement arrangements. Property rights issues like this one can often seem complicated, but protecting them should be a top priority for Floridians.

The legislation in discussion resets this traditional understanding of easements after a dispute arose in south Florida between a utility company and a local government that had acquired property for a public project. The utility company had infrastructure in an easement on the property that had to be relocated due to the public project. The local government argued that since they now owned the underlying property that the utility should pay the cost of the relocation and that the utility company’s easement was essentially meaningless. A court agreed.

Although this particular case might not seem to be a cause for concern for many Floridians, it should be. This case represents an incorrect and critical shift in the rights held by all easement holders. Basically, the case suggests that a local government can extinguish an easement simply by acquiring property and undertaking a public project on it. This runs counter to the traditional understanding of basic property rights.

Easements “run with the land” and are typically not affected by the sale of the property. Put simply, an easement holder has a right to use the property, regardless of who the owner is, and are due compensation for changes to the property that interferes with their easement.

By looking at the past actions of the local governments and utility companies, one can gauge what the historical understanding of easement rights has been up until recently. In regards to easement relocations, the common business practice between local governments and utilities for many years has been for local governments to pay for the relocation.

The legislation in discussion will reset this historical understanding of an easement holders rights in regards to infrastructure relocations and has the added benefit of “short circuiting” expensive litigation. This reset will also force local governments to complete proper due diligence on proposed public projects and ensures the real cost has been accounted for and reported to their taxpayers, and not cost shifted to utilities and their customers.

Daniel Peterson is the director of the Orlando-based Center for Property Rights at The James Madison Institute. 

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