5730 LAKE UNDERHILL, LLC, ETC., ET AL., APPELLANTS,
v.
SMITH-HORNER,, LLP, ETC., APPELLEE
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The Fifth District Court of Appeal affirmed a trial court's determination that a permanent easement for vehicular traffic existed between two adjacent properties, one containing a Popeyes restaurant, but reversed the award of nominal damages as excessive and remanded for adjustment. The court also reversed the trial court's alternative finding of a prescriptive easement.
The permanent express easement was properly established and the trial court's legal conclusions regarding its interpretation were affirmed. However, the prescriptive easement finding was reversed because Appellee's use was not adverse—it was under a valid claim of right in the lease. The nominal damages award of $2,500 was reversed as excessive and the case was remanded for the trial court to enter an amended judgment with a reduced damages amount.
[1] A prescriptive easement cannot be established when the use of the easement is not adverse, as use is presumed to be subordinate to the owner's title and with the owner's…
[2] The burden is on the claimant to prove that the use or possession of another's land is adverse for the purpose of establishing a prescriptive easement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the law does not favor the acquisition of prescriptive rights, use or possession of another's land is presumed to be subordinate to the owner's title, and with the owner's permission; and the burden is on the claimant to prove that such use or possession is adverse.”
Establishes the legal standard that prescriptive easement claimants must prove adverse use, not permissive use.
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Join FLexlaw to unlock all legal intelligenceTwo adjacent parcels of property were involved—one owned by Appellee (Smith-Horner, LLP) with a Popeyes restaurant, and one owned by Appellant (5730 L…
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At issue in this case is an easement for vehicular traffic from Appellee’s property, upon which a Popeyes restaurant is built, onto the parking lot of Appellant’s adjacent property. 5730 Lake Underhill, LLC, and Wen-Fang Sun (“Appellant”) appeal a Final Judgment in favor of Smith-Horner, LLP (“Appellee”) holding that a permanent easement was established between the two parcels of property. Appellant raises the following issues, contending that the trial court erred in determining that: 1) the language creating the easement was ambiguous; 2) any ambiguity was latent or intermediate, allowing for the introduction of extrinsic evidence for clarification; 3) the easement was express and permanent; 4) in the alternative, a prescriptive easement existed; 5) in the alternative, an implied easement existed; 6) the lease was still in effect through an amendment; and *3937) an award of $2500 was a proper amount of nominal damages.1 We affirm on all issues except the prescriptive easement and the nominal damages.
The trial court erred in its alternative, finding that a prescriptive easement was established. As Appellant correctly argues, Appellee’s use of the easement was not adverse. “Because the law. does not. favor the acquisition of prescriptive rights, use or possession of another’s land is presumed to .be subordinate to the owner’s title, and with the owner’s permission; and the burden is on the claimant to prove that such use or possession is adverse....” Suwanee River Water Mgmt. Dist. v. Price, 651 So.2d 749, 750 (Fla. 1st DCA 1995). The Popeyes’ patrons used the easement under a valid claim of right, as set out in the lease. Accordingly, such use was not adverse; and a prescriptive easement was not established.
Furthermore, the trial court’s award of $2500 in nominal damages was excessive. Pecuniary damages due to loss of business' were not shown at trial. Accordingly, as Appellee’s counsel conceded during oral argument, the $2500 awárd exceeded the appropriate amount of nominal damages. We, therefore, remand this case to the trial court to enter an amended judgment in accordance with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
LAWSON, C.J., SAWAYA and EDWARDS, JJ., concur.
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- Suwannee River Water Mgmt. Dist. v. Price, 651 So. 2d 749 (Fla. 1st DCA 1995)
- Life Care Ponte Vedra, Inc. v. H.K. WU, 162 So. 3d 188 (Fla. 5th DCA 2015)