Senate Bill sb1184

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                  SB 1184

    By Senator Fasano





    11-650A-05                                          See HB 351

  1                      A bill to be entitled

  2         An act relating to statutory ways of necessity;

  3         amending s. 704.01, F.S.; revising criteria for

  4         establishing a statutory way of necessity

  5         exclusive of common-law right; amending s.

  6         704.04, F.S.; removing a limitation on the

  7         existence of certain easements; providing for

  8         reenactment of certain provisions under certain

  9         circumstances; providing for effectiveness;

10         providing an effective date.

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12  Be It Enacted by the Legislature of the State of Florida:

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14         Section 1.  Subsection (2) of section 704.01, Florida

15  Statutes, is amended to read:

16         704.01  Common-law and statutory easements defined and

17  determined.--

18         (2)  STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW

19  RIGHT.--Based on public policy, convenience, and necessity, a

20  statutory way of necessity exclusive of any common-law right

21  exists when any land or portion thereof is outside any

22  municipality which is being used or desired to be used for a

23  dwelling or dwellings or for agricultural or for timber

24  raising or cutting or stockraising purposes shall be shut off

25  or hemmed in by lands, fencing, or other improvements of other

26  persons so that no practicable route of egress or ingress

27  shall be available therefrom to the nearest practicable public

28  road or private road in which the landlocked owner has vested

29  easement rights. The owner or tenant thereof, or anyone in

30  their behalf, lawfully may use and maintain an easement for

31  persons, vehicles, stock, franchised cable television service,

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1184
    11-650A-05                                          See HB 351




 1  and any utility service, including, but not limited to, water,

 2  wastewater, reclaimed water, natural gas, electricity, and

 3  telephone service, over, under, through, and upon the lands

 4  which lie between the said shut-off or hemmed-in lands and

 5  such public road or private road in which the landlocked owner

 6  has vested easement rights by means of the nearest practical

 7  route, considering the use to which said lands are being put;

 8  and the use thereof, as aforesaid, shall not constitute a

 9  trespass; nor shall the party thus using the same be liable in

10  damages for the use thereof,; provided that such easement

11  shall be used only in an orderly and proper manner.

12         Section 2.  Effective only if a court determines that

13  subsection (2) of section 704.01, Florida Statutes, as amended

14  by section 1 of this act, is unconstitutional and such

15  determination is upheld on appeal, it is the intent of the

16  Legislature that the provisions of such subsection shall be

17  the same as those in existence prior to amendment by this act,

18  and to that end subsection (2) of section 704.01, Florida

19  Statutes, as it existed prior to amendment by section 1 of

20  this act, is reenacted to read:

21         704.01  Common-law and statutory easements defined and

22  determined.--

23         (2)  STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW

24  RIGHT.--Based on public policy, convenience, and necessity, a

25  statutory way of necessity exclusive of any common-law right

26  exists when any land or portion thereof outside any

27  municipality which is being used or desired to be used for a

28  dwelling or dwellings or for agricultural or for timber

29  raising or cutting or stockraising purposes shall be shut off

30  or hemmed in by lands, fencing, or other improvements of other

31  persons so that no practicable route of egress or ingress

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1184
    11-650A-05                                          See HB 351




 1  shall be available therefrom to the nearest practicable public

 2  or private road. The owner or tenant thereof, or anyone in

 3  their behalf, lawfully may use and maintain an easement for

 4  persons, vehicles, stock, franchised cable television service,

 5  and any utility service, including, but not limited to, water,

 6  wastewater, reclaimed water, natural gas, electricity, and

 7  telephone service, over, under, through, and upon the lands

 8  which lie between the said shut-off or hemmed-in lands and

 9  such public or private road by means of the nearest practical

10  route, considering the use to which said lands are being put;

11  and the use thereof, as aforesaid, shall not constitute a

12  trespass; nor shall the party thus using the same be liable in

13  damages for the use thereof; provided that such easement shall

14  be used only in an orderly and proper manner.

15         Section 3.  Section 704.04, Florida Statutes, is

16  amended to read:

17         704.04  Judicial remedy and compensation to servient

18  owner.--When the owner or owners of such lands across which a

19  statutory way of necessity under s. 704.01(2) is claimed,

20  exclusive of the common-law right, objects or refuses to

21  permit the use of such way under the conditions set forth

22  herein or until she or he receives compensation therefor,

23  either party or the board of county commissioners of such

24  county may file suit in the circuit court of the county

25  wherein the land is located in order to determine if the claim

26  for said easement exists, and the amount of compensation to

27  which said party is entitled for use of such easement. When

28  Where said easement is awarded to the owner of the dominant

29  tenement, it shall be in compliance with s. 704.01(2) and

30  shall exist so long as such easement is reasonably necessary

31  for the purposes stated herein. The court, in its discretion,

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1184
    11-650A-05                                          See HB 351




 1  shall determine all questions, including the type, duration,

 2  extent, and location of the easement, the amount of

 3  compensation, and the attorney's fees and costs to be awarded

 4  to either party for unreasonable refusal to comply with the

 5  provisions of s. 704.01(2), provided that if either of said

 6  parties so requests in her or his original pleadings, the

 7  amount of compensation may be determined by a jury trial. The

 8  easement shall date from the time the award is paid.

 9         Section 4.  Effective only if a court determines that

10  section 704.04, Florida Statutes, as amended by section 3 of

11  this act, is unconstitutional and such determination is upheld

12  on appeal, it is the intent of the Legislature that the

13  provisions of such section shall be the same as those in

14  existence prior to amendment by this act, and to that end

15  section 704.04, Florida Statutes, as it existed prior to

16  amendment by this act, is reenacted to read:

17         704.04  Judicial remedy and compensation to servient

18  owner.--When the owner or owners of such lands across which a

19  statutory way of necessity under s. 704.01(2) is claimed,

20  exclusive of the common-law right, objects or refuses to

21  permit the use of such way under the conditions set forth

22  herein or until she or he receives compensation therefor,

23  either party or the board of county commissioners of such

24  county may file suit in the circuit court of the county

25  wherein the land is located in order to determine if the claim

26  for said easement exists, and the amount of compensation to

27  which said party is entitled for use of such easement. Where

28  said easement is awarded to the owner of the dominant

29  tenement, it shall be in compliance with s. 704.01(2) and

30  shall exist so long as such easement is reasonably necessary

31  for the purposes stated herein. The court, in its discretion,

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1184
    11-650A-05                                          See HB 351




 1  shall determine all questions, including the type, duration,

 2  extent, and location of the easement, the amount of

 3  compensation, and the attorney's fees and costs to be awarded

 4  to either party for unreasonable refusal to comply with the

 5  provisions of s. 704.01(2) provided that if either of said

 6  parties so requests in her or his original pleadings, the

 7  amount of compensation may be determined by a jury trial. The

 8  easement shall date from the time the award is paid.

 9         Section 5.  This act shall take effect July 1, 2005.

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CODING: Words stricken are deletions; words underlined are additions.