Easements by way of necessity.

• Author: Neukamm, John B.
• Position: Florida

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. [section]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, [section]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 rightof-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 (2) 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 ten ant 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...