Senate Bill sb1184c1

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    Florida Senate - 2005                           CS for SB 1184

    By the Committee on Community Affairs; and Senator Fasano





    578-1934-05

  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.

11  

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

13  

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

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

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

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

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    Florida Senate - 2005                           CS for SB 1184
    578-1934-05




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

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

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

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

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

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

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

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

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

10         Section 2.  Effective only if a court determines that

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

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

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

14  Legislature that the provisions of such subsection shall be

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

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

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

18  this act, is reenacted to read:

19         704.01  Common-law and statutory easements defined and

20  determined.--

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

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

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

24  exists when any land or portion thereof outside any

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

26  dwelling or dwellings or for agricultural or for timber

27  raising or cutting or stockraising purposes shall be shut off

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

29  persons so that no practicable route of egress or ingress

30  shall be available therefrom to the nearest practicable public

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

                                  2

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    Florida Senate - 2005                           CS for SB 1184
    578-1934-05




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

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

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

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

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

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

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

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

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

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

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

12  be used only in an orderly and proper manner.

13         Section 3.  Section 704.04, Florida Statutes, is

14  amended to read:

15         704.04  Judicial remedy and compensation to servient

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

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

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

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

20  herein or until she or he receives compensation therefor,

21  either party or the board of county commissioners of such

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

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

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

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

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

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

28  shall exist so long as such easement is reasonably necessary

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

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

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

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    Florida Senate - 2005                           CS for SB 1184
    578-1934-05




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

 2  to either party for unreasonable refusal to comply with the

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

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

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

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

 7         Section 4.  Effective only if a court determines that

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

 9  this act, is unconstitutional and such determination is upheld

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

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

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

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

14  amendment by this act, is reenacted to read:

15         704.04  Judicial remedy and compensation to servient

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

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

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

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

20  herein or until she or he receives compensation therefor,

21  either party or the board of county commissioners of such

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

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

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

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

26  said easement is awarded to the owner of the dominant

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

28  shall exist so long as such easement is reasonably necessary

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

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

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

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    Florida Senate - 2005                           CS for SB 1184
    578-1934-05




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

 2  to either party for unreasonable refusal to comply with the

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

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

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

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

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

 8  

 9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                         Senate Bill 1184

11                                 

12  The committee substitute deletes language that expanded a
    statutory way of necessity to landlocked property of its use
13  or intended use.

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