Easements by Way of Necessity
In a previous article addressing prescriptive easements,1 it was noted that easements may arise pursuant to express agreements between the owners of the affected parcels of property, but it is also possible for easements to be implied or otherwise arise pursuant to applicable facts and circumstances despite the absence of an express easement agreement. Neither easements by way of necessity nor prescriptive easements are based upon an express agreement, and both such easements originally existed solely under common law. However, easements by way of necessity have since evolved and been broadened under Florida law and are now creatures of statute. Since easements by way of necessity are not based upon a recorded instrument, a title examiner would be unlikely to note specifically the possible existence of such an easement in a title insurance commitment unless the affected properties have been thoroughly inspected or a survey of the properties has been carefully reviewed. Thus, prior to any deletion of the standard survey exceptions from a title insurance commitment, which would protect the title insurance underwriter from an implied easement claim, a title examiner should, among other issues, confirm that there are no factors that might give rise to an easement by way of necessity.
F.S. §704.01 provides for two distinct easements by way of necessity, an implied grant of necessity pursuant to subsection (1), which is, essentially, a codification of the implied way of necessity arising under common law when a common grantor conveys property in a manner that creates a “landlocked” parcel of property, and a statutory way of necessity pursuant to subsection (2). Specifically, §704.01 provides as follows:
(1) Implied Grant of Way of Necessity. The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable2 way of egress or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.
(2) Statutory Way of Necessity Exclusive of Common-Law Right. Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land, including land formed by accretion, reliction, or other naturally occurring processes, or portion thereof, which is being used or is desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes is shut off or hemmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof, provided that such easement shall be used only in an orderly and proper manner.2
As noted in Matthews v. Quarles, 504 So. 2d 1246 (Fla. 1st DCA 1986), a party seeking to establish a common law way of necessity under subsection (1) must establish the following elements: 1) that, at one time, both properties were once owned by the same party; 2) that a common grantor conveyed the landlocked parcel, thereby causing the need for an easement; and 3) that, at the time the landlocked parcel was conveyed, the grantor’s remaining land had access to a public road.
Under such circumstances, it was presumed, under common law, that the parties intended for the owner of the landlocked parcel of property to continue to have access over a portion of the original grantor’s remaining property to a public road for no additional consideration. That presumption was eventually codified in 1917.
The statutory way of necessity arising under subsection (2) of §704.01 has only been in existence since its codification. The statute was revised in 2005 to provide that the statute — which previously applied only to lands located outside of a municipality — is also applicable to land located within a municipality. The statutory way of necessity gives rise to an easement for use by the owner or tenant of “shut-off or hemmed-in lands,” or anyone on their behalf, for ingress, egress, and utility services over, under, and upon the lands that lie between those lands and a public or private road by means of the nearest practical route. However, in order for owners of “landlocked” land to avail himself or herself of the statutory way of necessity, his or her land must either be used or desired to be used for dwelling, agricultural, timber raising or cutting, or stockraising purposes. Unlike the implied way of necessity arising under common law (as codified in subsection (1) of the foregoing statute), the owner of the lands across which a statutory way of necessity is created is entitled to compensation under F.S. §704.04, which provides as follows:
When the owner or owners of such lands across which a statutory way of necessity under s. 704.01(2) is claimed, exclusive of the common-law right, objects or refuses to permit the use of such way under the conditions set forth herein or until she or he receives compensation therefor, either party or the board of county commissioners of such county may file suit in the circuit court of the county wherein the land is located in order to determine if the claim for said easement exists, and the amount of compensation to which said party is entitled for use of such easement. When said easement is awarded to the owner of the dominant tenement, it shall be in compliance with s. 704.01(2) and shall exist so long as such easement is reasonably necessary. The court, in its discretion, shall determine all questions, including the type, duration, extent, and location of the easement, the amount of compensation, and the attorney’s fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2), provided that if either of said parties so requests in her or his original pleadings, the amount of compensation may be determined by a jury trial. The easement shall date from the time the award is paid.3
The constitutionality of the prior version of F.S. §704.01(2) (before it was expanded to include lands within municipalities) was upheld by the Florida Supreme Court in Deseret Ranches of Florida v. Bowman, 349 So. 2d 155 (Fla. 1977). In that case, Deseret Ranches contended that, since Fla. Const. art. X, §6(a) of 1968 provides that “[n]o private property shall be taken except for a public purpose,” and the statute provides primarily for a private benefit, the statute should be voided. The court disagreed and held “[t]he inverse of [Deseret Ranch’s] contention is true: the statute’s purpose is predominantly public and the benefit to the private landholder is incidental to the public purpose.” The court went on to state that “sensible utilization of land continues to be one of our most important goals,” and took notice that:
Florida grows in population at one of the fastest rates of any state in the nation. Useful land becomes more scarce in proportion to population increase, and the problem in this state becomes greater as tourism, commerce, and the need for housing and agricultural goods grow. its application to shut off lands to be used for housing, agriculture, timber production, and stockraising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they may be utilized in the enumerated ways.
Subsequently, in Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004), the Florida Supreme Court held that the Marketable Record Title Act is inapplicable to statutory ways of necessity arising under §704.01(2). In that case, the court reasoned that “[t]he fact that the [l]egislature has chosen to retain the statutory remedy indicates that the [l]egislature continues to believe that those enumerated uses of land…still serve an important public purpose.” Previously, the Florida Supreme Court held in H&F Land, Inc., v. Panama City-Bay County Airport & Industrial District, 736 So. 2d 1167 (Fla. 1999), that the Marketable Record Title Act can operate to eliminate common law ways of necessity arising under F.S. §704.01(1). It is worth noting that, in Roy v. Euro-Holland Vastgoed, 404 So. 2d 410 (Fla. 4th DCA 1981), the court confirmed, with respect to common law ways of necessity, “if at one time there has been unity of title, the right to a way of necessity may lie dormant through several transfers of title yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder of title” (subject, of course, to the application of the Marketable Record Title Act).
Several Florida cases have considered — and rejected — uses that are not specifically set forth in the statute giving rise to statutory ways of necessity. In Staten v. Gonzalez-Falla, 904 So. 2d 498 (Fla. 1st DCA 2005), the court did not permit the owner of the landlocked parcel of land to utilize the land for the operation of a hunt club. In support of its holding, the court cited Guess v. Azar, 57 So. 2d 443 (Fla. 1952), which confirmed that the statutory easement could not be used for the transportation of shell for commercial purposes; and Hunt v. Smith, 137 So. 2d 232 (Fla. 2d DCA 1962), which held that a statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute; and Blue Water Corp. v. Hechavarria, 516 So. 2d 17 (Fla. 3d DCA 1987), which held that a statutory way of necessity could not be used for a commercial fishing operation. Thus, in Blue Water, the court ruled that “[i]f the landlocked property is to be used for a purpose other than the statutory purpose, a lawful easement or access must be obtained other than through [§]704.01(2).”
No Florida case has fully addressed the issue of a “desired” use of property, but in the Hunt v. Smith case, the court noted in its refusal to find the existence of a statutory way of necessity, “[w]hether or not the defendants, or their subsequent title holders, may desire to use their lands for the purposes enumerated in the statute and to thereby bring into operation the statute dealing with statutory ways of necessity is not a presently ascertainable matter.”
Several cases have held that a “statutory way of necessity is only available to landowners who do not qualify for a common law way of necessity” arising under F.S. §704.01(1).4 In Reyes v. Perez, 284 So. 2d 493 (Fla. 4th DCA 1973), the court explained, in discussing the two types of easements addressed in F.S. §704.01 that “the two sections must be considered serially and that the existence of a common law easement as described in Section (1) bars the establishment of a statutory easement under Section (2).”
Citing Bell v. Cox, 642 So. 2d 1381 (Fla. 5th DCA 1994), the court in Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999), held that “[t]o establish a statutory way of necessity, the owner of the landlocked parcel must show that the property is not served by a common law easement” and concluded that, since the owners of the landlocked parcel were entitled to an implied (common law) way of necessity over other land pursuant to §704.01(1), they were not entitled to a statutory way of necessity pursuant to §704.01(2). In Hancock, the court explained that “[a]n implied grant [common law way of necessity] arises only where a unity of title exists from a common source other than the original grant from the state or United States.” In that case, the court found that the applicable property became inaccessible as a result of conveyances dividing the original parcel, thereby giving rise to a presumed right-of-way under the common law.
In Cirelli, the court explained that, “[b]ecause a common law way of necessity required a common source of title between the dominant and servient parcels, it became obvious that this requirement could not be met in all instances and many parcels of property would remain landlocked. Therefore, the legislature enacted §704.01(2) to provide relief in those instances in which a common law way of necessity could not be obtained. A statutory way of necessity does not require a common source of title and is dependent upon the existence of numerous factors that are not necessary to the creation of a common law way of necessity. Moreover, public policy rather than legal fiction (the presumed intent of the parties) is the basic foundation for statutory ways of necessity.” The court went on to note that “[§]704.01(2) serves the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural products.” The court further noted the positive effects of development promotion and increased tax revenues.
The Cirelli decision enumerated the following elements necessary to establish a statutory way of necessity under §704.01(2):
1) The claimant’s property is landlocked by property belonging to others;
2) There is not practicable route of ingress or egress to the nearest public or private road;
3) There is no common law way of necessity under §704.01(1) because there is no unity of title between the landlocked and adjoining tracts;
4) The landlocked property is situated outside a municipality (which is no longer applicable under the current version of the statute);
5) The landlocked property is being used or the owner desires to use the property as a dwelling or for agricultural, timber raising or cutting or stockraising purposes; and
6) The statutory way of necessity sought over the adjoining parcel is the “nearest practicable route” of access.
Section 704.01(1) specifically provides that a common law way of necessity will not be terminated on account of the transfer of either the dominant or servient property due to the nonpayment of taxes. Another interesting issue is that, unlike §704.01(2), which provides for both ingress/egress and utility easements, §704.01(1) only contemplates rights-of-way (and does not address utility easements). Thus, in IRT Property v. Sheehan, 581 So. 2d 591 (Fla. 2d DCA 1991), the court held that a common law easement did not give rise to parking rights. In reaching that conclusion, the court cited Wimberly v. Lake Weir Yacht Club, 480 So. 2d 224 (Fla. 5th DCA 1985), for the proposition that common law ways of necessity are limited to easements solely for ingress and egress.
It is important for real estate attorneys to familiarize themselves with the elements of implied easements arising by way of necessity (as well as prescriptive easements, which are addressed in the article cited in the introductory paragraph of this article) since the existence of such easements are unlikely to appear in the public records. Thus, attorneys representing purchasers or issuing title insurance in connection with real estate transactions should always personally inspect the property or carefully review a survey of the property and, if appropriate, follow up with appropriate additional inquiries to assure that the property is not burdened by unwritten easements or does not rely upon the existence of a nonexpress easement for ingress, egress, or utility services. The failure to do so could lead to an unwelcome future claim and a disappointed client.
1 John B. Neukamm, Prescriptive Easements: More than “Easements by Adverse Possession,” 90 Fla. B. J. 46 (Apr. 2016).
2 Fla. Stat. §704.03 defines the word “practicable,” as used in Fla. Stat. §704.01 to mean “without the use of bridge, ferry, turnpike road, embankment, or substantial fill.”
3 It should be noted that Fla. Stat. §704.02 provides that, if no compensation is paid for a statutory way of necessity, and the land upon which the easement is located is used for enclosing farm or grove products or livestock (or is later put to such use), the owner or tenant of the dominant tenement using the easement shall, when requested by the owner of the servient tenement, erect and maintain either a cattle guard or gate at each place where the easement intersects a fence.
4 Cirelli v. Ent, 885 So. 2d 423 (Fla. 5th DCA 2004), citing Boyd v. Walker, 776 So. 2d 370 (Fla. 5th DCA 2001), and Ganey v. Byrd, 393 So. 2d 652 (Fla 1st DCA 1980).
John Neukamm is a shareholder with the Mechanik Nuccio law firm in Tampa. He received a B.S. in accounting with high honors in 1981, and a J.D. with honors in 1984 from the University of Florida. Neukamm is a board certified real estate lawyer, a member of the American College of Real Estate Lawyers, and serves on the Florida Legal Education Association’s Executive Board. He is a former chair of The Florida Bar’s Real Property, Probate and Trust Law Section, and is a recipient of both the section’s Annual Service Award and its Lifetime Professionalism Award. Neukamm is also a former chair of the Hillsborough County Bar Association’s Real Property, Probate & Trust Law Section.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Deborah Packer Goodall, chair, and Jeff Goethe and Doug Christy, editors.
