The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 814
INTRODUCER: Senator Yarborough
SUBJECT: Easements Affecting Real Property Owned by the Same Owner
DATE: January 26, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. RC
I. Summary:
SB 814 provides that a landowner may create a valid easement, servitude, or other interest that
affects his or her own land. The bill conforms the law on easements and servitudes to modern
practices and customs. The bill applies to existing easements or servitudes but it does not
reinstate an easement or servitude that was invalidated in the past by a court.
The bill is effective upon becoming law.
II. Present Situation:
An easement is a nonpossessory interest in land of another. An easement is an interest in land,
not merely a contract right. The nonpossessory feature of an easement differentiates it from an
estate in land. Thus, the holder of an affirmative easement may only use the land burdened by the
easement; the holder may not occupy and possess the realty as does an estate owner. An
easement burdens land possessed by someone other than the easement holder. This characteristic
is a corollary of the nonpossessory element of an easement. It emphasizes the distinction
between possession and use and highlights the fact that a possessor and an easement holder can
simultaneously use the same parcel of land.
1
An easement is a right or privilege by which the
owner of one parcel of land, by reason of such ownership, has a right to the use of the real
property of another for a special purpose.
2
“Servitude” is the generic term that describes legal devices private parties can use to create rights
and obligations that run with land. Rights and obligations that run with land are useful because
they create land-use arrangements that remain intact despite changes in ownership of the land.
Servitudes permit the creation of neighborhoods restricted to particular uses, providing a private
alternative to zoning; they permit property to be used as a basis for financing infrastructure,
providing a private alternative to taxation; and they permit the creation of stable arrangements
1
“Easement” defined, THE LAW OF EASEMENTS & LICENSES IN LAND § 1:1.
2
FLA.JUR.2D EASEMENTS §1.
REVISED: BILL: SB 814 Page 2
for shared use of land, providing an alternative to acquisition of fee-simple interests for
transportation corridors and natural-resource exploitation. Although these are the most common
uses of servitudes, they are not exclusive. Servitudes may be used for any purpose that is not
illegal or against public policy. Servitudes are widely used in land development because they can
be individually tailored to meet the needs of particular projects. They are widely used for roads,
utilities, pipelines, and natural-resource exploitation because they are less expensive than
acquisition of a fee simple.
3
The earliest form of easement or servitude was probably a road or access easement. Such
easements, whether formal or informal, have existed by necessity since the time that civilization
started recognizing real property rights and ownership.
4
In the past two centuries, progress has
led society to create arrangements in the nature of an easement that are for the common good. It
is important to note, these easements are necessary for society to function, and affect nearly
every parcel of property in Florida. These vital easements include road easements, utility
easements (including gas, water, sewer, electrical, and communications easements), stormwater
easements, and conservation easements. Such easements often created by a landowner in a form
affecting the landowner’s own real property. Generally, land owners want these easements so
that their property is accessible and can use public utilities and services. Currently, a developer
must create various access and utility easements as a condition of state and local laws and
regulations regarding plat or condominium approval.
5
At common law, a landowner may not create an easement or other servitude over his or her own
lands.
6
No apparent public policy argument continues to support this rule. This ancient common
law concept has been ignored in the creation of numerous easements, servitudes, and other
similar arrangements in Florida that are required by modern society. Recent appellate decisions
have, however, used this ancient common law concept to invalidate easements and thus have
caused real property lawyers to question whether the limited findings of those decisions could be
used to challenge millions of vital consensual access and utility easements. Cases include:
A developer in Brevard County who owned two adjoining commercial properties. He granted
an easement from one parcel to the other parcel regarding use of the parking lot as a
condition of a development permit. Many years later the separate parcels had separate owners
who litigated the validity of the parking easement. The court found the easement invalid
because the same person owned both parcels at the time of creation of the easement.
7
Poco Place is a short straight private road in Nokomis. It serves 6 homes, 3 on the North and
3 on South. Bayshore Road, a public road, is at the East end of Poco Place, and a waterfront
on the intracoastal is at the West end of Poco Place. Owners of one of the waterfront lots
physically blocked the road, blocking access to the waterfront. One of the inland parcel
3
Restatement (Third) of Property (Servitudes) § 1.1 (2000).
4
For instance, right-of-way easements appear in the Twelve Tables of Rome. Rosenberg, Fixing a Broken Common Law, 44
FSU LAW REV. 143, 144 at n. 5.
5
For instance, a condominium developer must create a nonexclusive easement for ingress and egress over streets, walks, and
other rights-of-way serving the units of a condominium, part of the common elements necessary to provide reasonable access
to the public ways, easements through the units for utilities, and easements for support of the structure, all of which must be
created before the state will approve the developer to sell condominium units to the public. Sections 718.104(4)(n),
718.108(1), and 718.502(1)(b), F.S.
6
Winthrop v. Wadsworth, 42 So. 2d 541, 543-44 (Fla. 1949).
7
One Harbor Financial Ltd. Co. v. Hynes Properties, LLC, 884 So. 2d 1039 (Fla. 3rd DCA 2004). BILL: SB 814 Page 3
owners responded by suing to enforce the easement rights. The court invalidated a portion of
the easements creating Poco Place because that portion was created by a previous landowner
in his own land.
8
III. Effect of Proposed Changes:
The bill provides that an owner of real property may create an easement, servitude, or other
interest in the owner’s real property, and such easement, servitude, or other interest is valid
notwithstanding that the owner owns all of the affected real property.
The bill states that it clarifies existing law and applies to, without limitation, any easement,
including, but not limited to, utility easements, access easements, parking easements, negative
easements, environmental easements, and solar easements; surface water management
agreements; or any other rights in the nature of an easement, servitude, profit, use right,
restriction, obligation, condition, reservation, or other covenant, contained in a written
instrument, whether denominated as an easement, deed, plat, declaration, covenant, condition,
restriction, servitude, or otherwise.
The bill further provides that it does not revive or reinstate any right or interest that has been
fully and finally adjudicated as invalid before the effective date of the bill.
The bill takes effect upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Where a statute may be applied retroactively, a court must first determine if the
Legislature intended the statute to be retroactive. If so, the court must determine whether
retroactive application would violate any constitutional principles. A court will reject
such an application if the statute impairs a vested right, creates a new obligation, or
8
King v. Roorda, 355 So. 3d 1001 (Fla. 2d DCA 2023). BILL: SB 814 Page 4
imposes a new penalty. The central focus of a court’s inquiry is whether retroactive
application of the statute “attaches new legal consequences to events completed before its
enactment.”
9
The bill applies to existing easements, servitudes, and other similar agreements, but does
not revive or reinstate any right or interest fully adjudicated before the effective date of
the bill.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Passage of the bill has no apparent fiscal impact as it will confirm current legal
relationships, although failure to pass the bill may lead to costly litigation.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
At line 24 the bill states that it “clarifies existing law.” It may be more accurate to say that this
bill clarifies that the ancient rule has been effectively abrogated by longstanding and widespread
custom and use in the modern age.
VIII. Statutes Affected:
This bill creates section 704.09 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
9
Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). BILL: SB 814 Page 5
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.