Florida Statute 704.01 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XL
REAL AND PERSONAL PROPERTY

Chapter 704
EASEMENTS

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F.S. 704.01

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.

F.S. 704.01 on Google Scholar

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Amendments to 704.01

Arrestable Offenses / Crimes under Fla. Stat. 704.01

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 704.01.

Annotations, Discussions, Cases:

Cases Citing Statute 704.01

Total Results: 20

WILDE CYPRESS BRANCH, BOGGY BRANCH, CROSBY ISLAND MARSH, LAKE HART, LAKE MARY JANE, AND ALL OTHER AFFECTED ORANGE COUNTY WATERS AND CHARLES O'NEAL, AS PRESIDENT OF SPEAK UP WEKIVA, INC. v. EMILE D. "SHAWN", IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND BEACHLINE SOUTH RESIDENTIAL, LLC

Court: District Court of Appeal of Florida | Date Filed: 2024-01-19

Snippet: constitutional and preempts Orange County Charter section 704.1. Because section 403.412(9)(a), Florida Statutes

Vitelli v. Hagger

Court: District Court of Appeal of Florida | Date Filed: 2019-04-12

Citation: 268 So. 3d 246

Snippet: Vitelli died while this appeal was pending. § 704.01(2), Fla. Stat. (2017). Dr. Bartholomew was allowed

Vitelli v. Hagger

Court: District Court of Appeal of Florida | Date Filed: 2019-04-12

Citation: 268 So. 3d 246

Snippet: Vitelli died while this appeal was pending. § 704.01(2), Fla. Stat. (2017). Dr. Bartholomew was allowed

WAYNE GOLDMAN, MARIANNE GOLDMAN & SEAN ACOSTA v. STEPHEN LUSTIG, JOSEPH F. IERACITANO

Court: District Court of Appeal of Florida | Date Filed: 2018-01-24

Snippet: So. 2d 1131, 1133 (Fla. 5th DCA 1988). Section 704.01(1), Florida Statutes (2017), codifies the requirements

WAYNE GOLDMAN, MARIANNE GOLDMAN & SEAN ACOSTA v. STEPHEN LUSTIG, JOSEPH F. IERACITANO

Court: District Court of Appeal of Florida | Date Filed: 2018-01-24

Citation: 237 So. 3d 381

Snippet: So. 2d 1131, 1133 (Fla. 5th DCA 1988). Section 704.01(1), Florida Statutes (2017), codifies the requirements

Paul R. Messer and Betty J. Messer v. Mark James Sander, and Julia Dils Sander, etc.

Court: District Court of Appeal of Florida | Date Filed: 2016-01-05

Citation: 182 So. 3d 795

Snippet: easement by way of necessity pursuant to section 704.01(2), Florida Statute (2014). The trial court found

Rayburn v. Bright

Court: District Court of Appeal of Florida | Date Filed: 2015-05-01

Citation: 163 So. 3d 735, 2015 Fla. App. LEXIS 6432, 2015 WL 1942920

Snippet: necessity; (IV) statutory way of necessity under section 704.01, Florida Statutes; (V) trespass on the case; (VI)

Agresta v. City of Maitland

Court: District Court of Appeal of Florida | Date Filed: 2015-02-20

Citation: 159 So. 3d 876, 2015 Fla. App. LEXIS 2189, 2015 WL 710976

Snippet: continued use of contraband articles....” See § 932.704(1), Fla. Stat. (2008) (emphasis added). Nothing in

Orlando Sanchez v. City of West Palm Beach

Court: District Court of Appeal of Florida | Date Filed: 2014-09-03

Citation: 149 So. 3d 92, 2014 Fla. App. LEXIS 13668, 2014 WL 4328192

Snippet: action to recover the property. § 932.703(1), 932.704(1), Fla. Stat. (1991). At the proceeding, the “governmental

Messer v. Sander

Court: District Court of Appeal of Florida | Date Filed: 2014-07-09

Citation: 144 So. 3d 572, 2014 WL 3295537, 2014 Fla. App. LEXIS 10535

Snippet: request for a statutory easement pursuant to section 704.01(2) was denied. Because we reversed that judgment

MESSER v. SANDER

Court: District Court of Appeal of Florida | Date Filed: 2014-07-09

Citation: 144 So. 3d 566, 2014 WL 3281822, 2014 Fla. App. LEXIS 10536

Snippet: request for a statutory easement pursuant to section 704.01(2), Florida Statutes,1 and their alternative request

Village Carver Phase 1, LLC v. Fidelity National Title Insurance Co.

Court: District Court of Appeal of Florida | Date Filed: 2013-09-30

Citation: 128 So. 3d 107, 2013 WL 5429585, 2013 Fla. App. LEXIS 15394

Snippet: statutory ways of necessity by virtue of section 704.01(2).”); the upshot is a clear breach of the insuring

PGA North II of Florida, LLC v. Division of Administration, State Department of Transportation

Court: District Court of Appeal of Florida | Date Filed: 2012-06-20

Citation: 126 So. 3d 1150, 2012 WL 2327758, 2012 Fla. App. LEXIS 9933

Snippet: access to a public road. Id. Additionally, section 704.01(1), Florida Statutes, provides: The common-law

Sheriff of Seminole County v. Oliver

Court: District Court of Appeal of Florida | Date Filed: 2011-03-25

Citation: 59 So. 3d 232, 2011 Fla. App. LEXIS 3983, 2011 WL 1079337

Snippet: proprietary interests of innocent owners .... ” § 932.704(1), Fla. Stat. (2009) (emphasis added). To prevail

Ainsworth v. KLI, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2007-09-26

Citation: 967 So. 2d 296, 2007 Fla. App. LEXIS 15196, 2007 WL 2781035

Snippet: 1986); Charles W. Ehrhardt, FLORIDA Evidenoe § 704.1 (2006 ed.) (“An expert may express an opinion based

Palm Beach Polo Holdings v. Equestrian Club

Court: District Court of Appeal of Florida | Date Filed: 2007-02-28

Citation: 949 So. 2d 347, 2007 WL 601573

Snippet: competent and substantial evidence."). Section 704.01(1), Florida Statutes, codifies the common-law rule

City of Hollywood v. Mulligan

Court: Supreme Court of Florida | Date Filed: 2006-07-06

Citation: 934 So. 2d 1238, 31 Fla. L. Weekly Supp. 461, 2006 Fla. LEXIS 1476, 2006 WL 1837930

Snippet: solely upon an individual's race or ethnicity. § 932.704(1), Fla. Stat. (2005) (emphasis added). Relying on

Schroeder v. Lawhon

Court: District Court of Appeal of Florida | Date Filed: 2006-02-10

Citation: 922 So. 2d 285, 2006 WL 305433

Snippet: connection with an action for partition. See § 704.01-.04, Fla. Stat. (2001). [11] A form for a "Judgment

Childers v. State

Court: District Court of Appeal of Florida | Date Filed: 2006-02-02

Citation: 931 So. 2d 86, 2006 Fla. App. LEXIS 17207, 2006 WL 237081

Snippet: necessity pursuant to section 704.01(2), Florida Statutes (1979). Section 704.01(2) provided for a statutory

Childers v. State

Court: District Court of Appeal of Florida | Date Filed: 2006-02-02

Citation: 936 So. 2d 585, 2006 WL 2620262

Snippet: necessity pursuant to section 704.01(2), Florida Statutes (1979). Section 704.01(2) provided for a statutory