What rights of use does an easement grant, if the easement does not say what kind of use that the easement holder is allowed?

A developer built a housing development called Bluebird Landing on riverfront property he owned in Florida. The development included a twenty-four acre common area, with river access, a pavilion with picnic benches, a cabin, and other amenities, which he conveyed to the Bluebird Landing Owners Association, Inc. by warranty deed. However, the developer reserved for himself "a perpetual, non-exclusive easement and right of ingress and egress over and across all . . . Common Areas."

Later, the developer built a second housing development, the Bluebird Preserve, on adjacent land he owned. The developer conveyed a perpetual non-exclusive easement and rights "of use and ingress and egress" in the Bluebird Landing common area to those who purchased lots in Bluebird Preserve.

The Bluebird Landing Owners Association objected to these easements granted to Bluebird Preserve owners. Bluebird Landing owners believed that the language of the easement reserved by the developer didn’t reserve any right of use for the developer—it was only an easement for ingress and egress. Therefore, the Bluebird Landing owners believed that the developer could not convey a right to use their common area, because it was a right that the developer did not himself have. Eventually, the Bluebird Landing Owners Association filed suit.

Of course, the Bluebird Landing owners were right that the developer could not convey to others a right he did not himself possess. So the issue in the lawsuit was this: what rights are contained in “a perpetual non-exclusive easement and right of ingress and egress”?

An appeals court which considered the language split the easement rights into two parts. Clearly, the easement granted a right of ingress and egress. But also, according to the appeals court, it also contained, by virtue of the word “and”, both that right of ingress and egress and a right to a “perpetual, non-exclusive easement”.

But a “perpetual, non-exclusive easement” to do what? An easement is a right to use land for a particular purpose. Since this easement did not state what that particular purpose was, the court found that the language was ambiguous.

The court rejected the option of interpreting the ambiguous language as an unlimited right to use the common area, but it also rejected the Bluebird Landing owners’ argument that the ambiguous language should simply fail to grant the developer any right at all to use the land. Instead, the court decided that what the parties intended the easement to mean at the time the easement was created should determine what uses the easement allowed. The appeals court sent the case back to the trial court for another trial to determine the intent of the parties.

Some courts may have ruled differently. In many courts, ambiguity in an easement will be construed against the grantor. While technically there is no grantor of an easement when the easement is reserved, as it was here, the developer was the grantor in the transaction that created the easement, and was responsible for drafting the easement language. Therefore, if this principle were applied, the easement would have been construed against him. It’s possible that some courts, after applying this principle, would have ruled that the easement only allowed ingress and egress.