| 1 | A bill to be entitled |
| 2 | An act relating to statutory ways of necessity; amending |
| 3 | s. 704.01, F.S.; revising criteria for establishing a |
| 4 | statutory way of necessity exclusive of common-law right; |
| 5 | amending s. 704.04, F.S.; removing a limitation on the |
| 6 | existence of certain easements; providing for reenactment |
| 7 | of certain provisions under certain circumstances; |
| 8 | providing for effectiveness; providing an effective date. |
| 9 |
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| 10 | Be It Enacted by the Legislature of the State of Florida: |
| 11 |
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| 12 | Section 1. Subsection (2) of section 704.01, Florida |
| 13 | Statutes, is amended to read: |
| 14 | 704.01 Common-law and statutory easements defined and |
| 15 | determined.-- |
| 16 | (2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW |
| 17 | RIGHT.--Based on public policy, convenience, and necessity, a |
| 18 | statutory way of necessity exclusive of any common-law right |
| 19 | exists when any land or portion thereof outside any municipality |
| 20 | which is being used or desired to be used for a dwelling or |
| 21 | dwellings or for agricultural or for timber raising or cutting |
| 22 | or stockraising purposes shall be shut off or hemmed in by |
| 23 | lands, fencing, or other improvements of other persons so that |
| 24 | no practicable route of egress or ingress shall be available |
| 25 | therefrom to the nearest practicable public road or private road |
| 26 | in which the landlocked owner has vested easement rights. The |
| 27 | owner or tenant thereof, or anyone in their behalf, lawfully may |
| 28 | use and maintain an easement for persons, vehicles, stock, |
| 29 | franchised cable television service, and any utility service, |
| 30 | including, but not limited to, water, wastewater, reclaimed |
| 31 | water, natural gas, electricity, and telephone service, over, |
| 32 | under, through, and upon the lands which lie between the said |
| 33 | shut-off or hemmed-in lands and such public road or private road |
| 34 | in which the landlocked owner has vested easement rights by |
| 35 | means of the nearest practical route, considering the use to |
| 36 | which said lands are being put; and the use thereof, as |
| 37 | aforesaid, shall not constitute a trespass; nor shall the party |
| 38 | thus using the same be liable in damages for the use thereof,; |
| 39 | provided that such easement shall be used only in an orderly and |
| 40 | proper manner. |
| 41 | Section 2. Effective only if a court determines that |
| 42 | subsection (2) of section 704.01, Florida Statutes, as amended |
| 43 | by section 1 of this act, is unconstitutional and such |
| 44 | determination is upheld on appeal, it is the intent of the |
| 45 | Legislature that the provisions of such subsection shall be the |
| 46 | same as those in existence prior to amendment by this act, and |
| 47 | to that end subsection (2) of section 704.01, Florida Statutes, |
| 48 | as it existed prior to amendment by section 1 of this act, is |
| 49 | reenacted to read: |
| 50 | 704.01 Common-law and statutory easements defined and |
| 51 | determined.-- |
| 52 | (2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW |
| 53 | RIGHT.--Based on public policy, convenience, and necessity, a |
| 54 | statutory way of necessity exclusive of any common-law right |
| 55 | exists when any land or portion thereof outside any municipality |
| 56 | which is being used or desired to be used for a dwelling or |
| 57 | dwellings or for agricultural or for timber raising or cutting |
| 58 | or stockraising purposes shall be shut off or hemmed in by |
| 59 | lands, fencing, or other improvements of other persons so that |
| 60 | no practicable route of egress or ingress shall be available |
| 61 | therefrom to the nearest practicable public or private road. The |
| 62 | owner or tenant thereof, or anyone in their behalf, lawfully may |
| 63 | use and maintain an easement for persons, vehicles, stock, |
| 64 | franchised cable television service, and any utility service, |
| 65 | including, but not limited to, water, wastewater, reclaimed |
| 66 | water, natural gas, electricity, and telephone service, over, |
| 67 | under, through, and upon the lands which lie between the said |
| 68 | shut-off or hemmed-in lands and such public or private road by |
| 69 | means of the nearest practical route, considering the use to |
| 70 | which said lands are being put; and the use thereof, as |
| 71 | aforesaid, shall not constitute a trespass; nor shall the party |
| 72 | thus using the same be liable in damages for the use thereof; |
| 73 | provided that such easement shall be used only in an orderly and |
| 74 | proper manner. |
| 75 | Section 3. Section 704.04, Florida Statutes, is amended to |
| 76 | read: |
| 77 | 704.04 Judicial remedy and compensation to servient |
| 78 | owner.--When the owner or owners of such lands across which a |
| 79 | statutory way of necessity under s. 704.01(2) is claimed, |
| 80 | exclusive of the common-law right, objects or refuses to permit |
| 81 | the use of such way under the conditions set forth herein or |
| 82 | until she or he receives compensation therefor, either party or |
| 83 | the board of county commissioners of such county may file suit |
| 84 | in the circuit court of the county wherein the land is located |
| 85 | in order to determine if the claim for said easement exists, and |
| 86 | the amount of compensation to which said party is entitled for |
| 87 | use of such easement. When Where said easement is awarded to the |
| 88 | owner of the dominant tenement, it shall be in compliance with |
| 89 | s. 704.01(2) and shall exist so long as such easement is |
| 90 | reasonably necessary for the purposes stated herein. The court, |
| 91 | in its discretion, shall determine all questions, including the |
| 92 | type, duration, extent, and location of the easement, the amount |
| 93 | of compensation, and the attorney's fees and costs to be awarded |
| 94 | to either party for unreasonable refusal to comply with the |
| 95 | provisions of s. 704.01(2), provided that if either of said |
| 96 | parties so requests in her or his original pleadings, the amount |
| 97 | of compensation may be determined by a jury trial. The easement |
| 98 | shall date from the time the award is paid. |
| 99 | Section 4. Effective only if a court determines that |
| 100 | section 704.04, Florida Statutes, as amended by section 3 of |
| 101 | this act, is unconstitutional and such determination is upheld |
| 102 | on appeal, it is the intent of the Legislature that the |
| 103 | provisions of such section shall be the same as those in |
| 104 | existence prior to amendment by this act, and to that end |
| 105 | section 704.04, Florida Statutes, as it existed prior to |
| 106 | amendment by this act, is reenacted to read: |
| 107 | 704.04 Judicial remedy and compensation to servient |
| 108 | owner.--When the owner or owners of such lands across which a |
| 109 | statutory way of necessity under s. 704.01(2) is claimed, |
| 110 | exclusive of the common-law right, objects or refuses to permit |
| 111 | the use of such way under the conditions set forth herein or |
| 112 | until she or he receives compensation therefor, either party or |
| 113 | the board of county commissioners of such county may file suit |
| 114 | in the circuit court of the county wherein the land is located |
| 115 | in order to determine if the claim for said easement exists, and |
| 116 | the amount of compensation to which said party is entitled for |
| 117 | use of such easement. Where said easement is awarded to the |
| 118 | owner of the dominant tenement, it shall be in compliance with |
| 119 | s. 704.01(2) and shall exist so long as such easement is |
| 120 | reasonably necessary for the purposes stated herein. The court, |
| 121 | in its discretion, shall determine all questions, including the |
| 122 | type, duration, extent, and location of the easement, the amount |
| 123 | of compensation, and the attorney's fees and costs to be awarded |
| 124 | to either party for unreasonable refusal to comply with the |
| 125 | provisions of s. 704.01(2) provided that if either of said |
| 126 | parties so requests in her or his original pleadings, the amount |
| 127 | of compensation may be determined by a jury trial. The easement |
| 128 | shall date from the time the award is paid. |
| 129 | Section 5. This act shall take effect July 1, 2005. |