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Easements Implied from a Preexisting Use: Escape from the Rabbit Hole

J. Michael Hartenstine

This is the story of a rabbit hole.[1] A rabbit hole into which Florida caselaw on implied easements based on a preexisting use descended in 1986 and has been trapped ever since. The descent was precipitated by Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc., 489 So. 2d 22 (Fla. 1986), an opinion so “cryptic and enigmatic”[2] and “unclear”[3] that it seriously could be questioned if an easement arising by implication from a preexisting use still existed in Florida.[4] The story commences in 1960 with a seemingly forgetful judge, then follows the journey of applicable Florida jurisprudence to its present chaotic state. The story concludes with a suggested escape from this rabbit hole that presently is the law of easements implied from a preexisting use. But first, a brief explanation of implied easements.

Read the full article at The Florida Bar Journal

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