Statutory Way of Necessity

1Elements and Case Citations

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“[B]ased 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.”

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Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1228-29 (Fla. 2004).

FLORIDA STATE COURTS

Florida Supreme Court: Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1228-29 (Fla. 2004); Deseret Ranches of Fla., Inc. v. Bowman, 349 So. 2d 155, 155 (Fla. 1977).

First District: Messer v. Sander, 144 So. 3d 566, 569 (Fla. 1st DCA 2014); Staten v. Gonzalez-Falla, 904 So. 2d 498, 499-500 (Fla. 1st DCA 2005); Trammell v. Ward, 667 So. 2d 223, 225 (Fla. 1st DCA 1995); Hoffman v. Laffitte, 564 So. 2d 170, 170-71 (Fla. 1st DCA 1990).

Second District: S. Fla. Water Mgmt. Dist. v. Layton, 402 So. 2d 597, 598 (Fla. 2d DCA 1981).

Fifth District: Cirelli v. Ent, 885 So. 2d 423, 432-33 (Fla. 5th DCA 2004); Bell v. Cox, 642 So. 2d 1381, 1382-83 (Fla. 5th DCA 1994); Faison v. Smith, 510 So. 2d 928, 929 (Fla. 5th DCA 1987).

Florida Statutes: Chapter 704, Florida Statutes (Easements)

2 Defenses to Claim for Statutory Way of Necessity

(1) R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: 704.04, Fla. Stat. (2023) (after either party file the claim, the circuit court determines if the easement exists). Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1229-30 (Fla. 2004).

(3) “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.” Hancock v. Tipton, 732 So. 2d 369, 373 (Fla. 2d DCA 1999) (emphasis added)(See Bell v. Cox, 642 So. 2d 1381, 1384 (Fla. 5th DCA 1994)).

(4) The party seeking the statutory way of necessity has the burden of proof. Goldman v. Lustig, 237 So. 3d 381, 385 (Fla. 4th DCA 2018); Palm Beach Polo Holdings, Inc. v. Equestrian Club Ests. Prop. Owners Ass’n, Inc., 949 So. 2d 347, 349 (Fla. 4th DCA 2007).

(5) Statutory way of necessity cannot be granted in the absence of absolute necessity. Messer v. Sander, 144 So. 3d 566, 569 (Fla. 1st DCA 2014); Palm Beach Polo Holdings, Inc. v. Equestrian Club Ests. Prop. Owners Ass’n, Inc., 949 So. 2d 347, 349-50 (Fla. 4th DCA 2007).

(6) “[T]he statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute.” Staten v. Gonzalez-Falla, 904 So. 2d 498, 501 (Fla. 1st DCA 2005)(citing Hunt v. Smith, 137 So. 2d 232, 233-34 (Fla. 2d DCA 1962))(emphasis added).

(7) When claiming statutory way of necessity, a party cannot use sovereign immunity as a defense. Fla. Water Mgmt. Dist. v. Layton, 402 So. 2d 597, 598-99 (Fla. 2d DCA 1981).

(8) “A statutory way of necessity does not require a common source of title and is dependant upon the existence of numerous factors that are not necessary to the creation of a common law way of necessity.” Cirelli v. Ent, 885 So. 2d 423, 428 (Fla. 5th DCA 2004)(emphasis added).

(9) [T]he legislature intended to include the state and its agencies within the meaning of “persons.” Maradiaga v. Brevard Cnty. Sch. Bd., 2007 WL 9719456, *3 (M.D. Fla. Aug. 24, 2007); Florida Water Mgmt. Dist. v. Layton, 402 So. 2d 597 (Fla. 2d DCA 1981)(emphasis added).

(10) “The rights of the owners of an easement over a “servient estate” are not absolute and unlimited. They are limited so that each party may reasonably enjoy his respective property rights.” Tortoise Island Communities, Inc. v. Roberts, 394 So. 2d 568, 569 (Fla. 5th DCA 1981) (citing Costin v. Branch, 373 So. 2d 370, 371 (Fla. 1st DCA 1979))(emphasis added).

(11) A Statutory way of necessity cannot be extinguished by Marketable Record Title Act(MRTA.) Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1233 (Fla. 2004); Cirelli v. Ent, 885 So. 2d 423, 426 (Fla. 5th DCA 2004).

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