Florida Statutes

Fla. Stat. § 704.01 (2025)

Common-law and statutory easements defined and determined.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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704.01 Common-law and statutory easements defined and determined.—

(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 practicable 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.

¹(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.

History.—s. 1, ch. 7326, 1917; RGS 4999; CGL 7088; s. 1, ch. 28070, 1953; s. 220, ch. 77-104; s. 1, ch. 91-117; s. 788, ch. 97-102; ss. 1, 2, ch. 2005-214.

¹Note.—Section 2, ch. 2005-214, reenacted subsection (2) as it existed prior to amendment by s. 1, ch. 2005-214, “[e]ffective only if a court determines that subsection (2) . . . , as amended by [s. 1, ch. 2005-214], is unconstitutional and such determination is upheld on appeal,” to read:

(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 or portion thereof outside any municipality which is being used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. 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.

Notes of Decisions

Cited in 88 cases, 1952–2019 · leading case: Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004).

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Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004). · cites it 20× “Finally, we recognize that we concluded in H & F Land that the "public policy concerns behind section 704.01" did not outweigh the importance "for the overall stability of property law under MRTA that claimants assert their interests in property in a reasonable and timely manner.”

Cirelli v. Ent, 885 So. 2d 423 (Fla. 5th DCA 2004). · cites it 39× “[2] There are two "ways of necessity" recognized in section 704.01: the common law way of necessity described in section 704.”

Deseret Ranches of Florida, Inc. v. Bowman, 349 So. 2d 155 (Fla. 1977). · cites it 21× “It should be noted at the outset that Section 704.01, Florida Statutes (1975), recognizes two types of ways of necessity.”

Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006). · cites it 8× “01(2), the Layton court explained: Appellant contends that section 704.01 does not apply to it because it is not a "person" within the intendment of the statute and sovereign immunity has consequently not been waived.”

Hynes v. City of Lakeland, 451 So. 2d 505 (Fla. 2d DCA 1984). · cites it 14× “Section 704.01 provides, inter alia: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified.”

City of Gainesville v. STATE, DOT, 778 So. 2d 519 (Fla. 1st DCA 2001). · cites it 4× “2d DCA 1981), where the court said, in addressing a state agency's contention that it was not a "person" within the meaning of an applicable statute: Appellant contends that section 704.01 does not apply to it because it is not a "person" within the intendment of the statute and…”

Dixon v. Feaster, 448 So. 2d 554 (Fla. 5th DCA 1984). · cites it 12× “This case involves the right to a way of necessity as that common law concept is recognized in section 704.01(1), Florida Statutes (1981).”

Est. of Hampton v. Fairchild-Fla. Const. Co., 341 So. 2d 759 (Fla. 1976). · cites it 6× “The action in the present case was brought pursuant to Section 704.01, Florida Statutes (1975), which is silent as to attorneys' fees.”

Stein v. Darby, 126 So. 2d 313 (Fla. 1st DCA 1961). · cites it 17× “Note that the first paragraph of F.S. § 704.01, F.S.A. in clear and concise terms recognizes "the common law rule of an implied grant of a way of necessity," and that the remainder of the chapter deals with situations not falling within that concept.”

Wayne Goldman, Marianne Goldman & Sean Acosta v. Stephen Lustig, Joseph F. Ieracitano, 237 So. 3d 381 (Fla. 4th DCA 2018). · cites it 6× “§ 704.01(1), Fla. Stat. (2017). In the instant case, there is no dispute that the only way for Unit Owners to currently access the dock by land is by first crossing into Lustig’s backyard and then walking on his pier.”

Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999). · cites it 7× “Ways of necessity, both implied under common law and statutory, are governed by section 704.01, Florida Statutes (1995). To 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.”

Moran v. Brawner, 519 So. 2d 1131 (Fla. 5th DCA 1988). · cites it 8× “Jones, [1] pursuant to section 704.01, Florida Statutes (1985), [2] in *1133 order to "establish a common law implied grant of way of necessity for ingress and egress over and across lands owned by [the Brawners].”

Show all 88 citing cases →

— 704.01(1) — 43 cases

Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004). “Finally, we recognize that we concluded in H & F Land that the "public policy concerns behind section 704.01" did not outweigh the importance "for the overall stability of property law under MRTA that claimants assert their interests in property in a reasonable and timely manner.”

Hynes v. City of Lakeland, 451 So. 2d 505 (Fla. 2d DCA 1984). “Section 704.01 provides, inter alia: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified.”

Dixon v. Feaster, 448 So. 2d 554 (Fla. 5th DCA 1984). “This case involves the right to a way of necessity as that common law concept is recognized in section 704.01(1), Florida Statutes (1981).”

Cirelli v. Ent, 885 So. 2d 423 (Fla. 5th DCA 2004). “[2] There are two "ways of necessity" recognized in section 704.01: the common law way of necessity described in section 704.”

Wayne Goldman, Marianne Goldman & Sean Acosta v. Stephen Lustig, Joseph F. Ieracitano, 237 So. 3d 381 (Fla. 4th DCA 2018). “§ 704.01(1), Fla. Stat. (2017). In the instant case, there is no dispute that the only way for Unit Owners to currently access the dock by land is by first crossing into Lustig’s backyard and then walking on his pier.”

— 704.01(2) — 46 cases

Cirelli v. Ent, 885 So. 2d 423 (Fla. 5th DCA 2004). “[2] There are two "ways of necessity" recognized in section 704.01: the common law way of necessity described in section 704.”

Deseret Ranches of Florida, Inc. v. Bowman, 349 So. 2d 155 (Fla. 1977). “It should be noted at the outset that Section 704.01, Florida Statutes (1975), recognizes two types of ways of necessity.”

Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006). “01(2), the Layton court explained: Appellant contends that section 704.01 does not apply to it because it is not a "person" within the intendment of the statute and sovereign immunity has consequently not been waived.”

Stein v. Darby, 126 So. 2d 313 (Fla. 1st DCA 1961). “Note that the first paragraph of F.S. § 704.01, F.S.A. in clear and concise terms recognizes "the common law rule of an implied grant of a way of necessity," and that the remainder of the chapter deals with situations not falling within that concept.”

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