HB 0351

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


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