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By: Michael G. Kouskoutis
In Goldman v. Lustig, a Florida townhome unit owner (Lustig) sought an injunction to prohibit neighboring unit owners from crossing his yard to access a dock located behind his unit. The unit owners had rights to the dock pursuant to an assignment between Lustig and the Association, in which Lustig severed his riparian rights for the benefit of neighboring unit owners. Lustig conceded that portions of the dock belonged to all unit owners and that the only means to access the shared dock was by a pier located in his backyard, yet still argued that unit owners had no right to enter his property.
The unit owners urged the court to recognize an implied easement by necessity, which grants an easement over another’s land “where there is no other reasonable and practicable way of egress, or ingress” to shared property. In siding with Lustig, the court stated that “an easement by necessity requires a showing of an absolute necessity.” The court reasoned that, since the unit owners live on waterfront property, “they can find an alternate means of accessing the dock, such as by constructing their own access pier, which would be a ‘reasonable and practicable way of egress, or ingress.’”
Community associations should be careful not to overlook issues of access when providing shared property, and should be mindful of the onerous burden courts may impose prior to granting implied easements.
If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].