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. |