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 Rules
BILL: CS/SB 814
INTRODUCER: Rules Committee and Senator Yarborough
SUBJECT: Easements Affecting Real Property Owned by the Same Owner
DATE: February 22, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. Bond Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 814 amends laws limiting ownership of real property by certain foreign entities and
individuals who are related to a foreign country of concern to: change the prohibitions from "any
interest" in real property to a "controlling interest" in real property, create a presumption that a
25% or greater interest is a controlling interest, allow ownership by an otherwise restricted
individual if such individual has been granted a non-tourist visa or has been granted asylum, and
allow ownership where the intent of such ownership is residential subdivision and development.
The bill also provides that a landowner, whether foreign or domestic, may create a valid
easement, servitude, or other interest that affects his or her own land (that is, notwithstanding a
"unity of title"). The bill conforms the law on easements and servitudes to modern practices and
customs where such easements are commonly created. The bill applies to existing easements or
servitudes but does not reinstate an easement or servitude that is invalid for reasons other than
unity of title.
The bill is effective upon becoming law.
II. Present Situation:
Foreign Landowners
Part III of ch. 692, F.S. is entitled "Conveyances to Foreign Entities." In short, the part prohibits
the purchase and ownership of certain real property interests by certain entities and noncitizens.
REVISED: BILL: CS/SB 814 Page 2
Specifically:
Section 692.202, F.S., prohibits a foreign principal from owning an interest in agricultural
land.
Section 692.203, F.S., prohibits a foreign principal from owning an interest in any real
property that is on or within 10 miles of any military installation or critical infrastructure
facility.
Section 692.204, F.S., prohibits the People’s Republic of China, the Chinese Communist
Party, or any official or member of the People’s Republic of China or the Chinese
Communist Party, or any related person or entity including Chinese citizens,
1
from owning
an interest in any real property.
Section 692.205, F.S., creates an exception to these 3 prohibitions above for properties acquired
for a diplomatic purpose authorized by the federal government.
A "de minimus interest" in real property does not violate these prohibitions. A de minimus
interest is defined in each of the 3 prohibitions as a less than 5 percent interest in the equities or
where ownership is a noncontrolling interest in an entity controlled by a registered investment
advisor. What constitutes a controlling interest is not defined.
Easements
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.
2
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.
3
“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,
1
The statute impacts the following: The People’s Republic of China, the Chinese Communist Party, any official or member
of the People’s Republic of China or the Chinese Communist Party, any other political party or member of a political party or
a subdivision of a political party in the People’s Republic of China; a partnership, an association, a corporation, an
organization, or any other combination of persons organized under the laws of or having its principal place of business in the
People’s Republic of China, or a subsidiary of such entity; any person who is domiciled in the People’s Republic of China
and who is not a citizen or lawful permanent resident of the United States; and any person, entity, or collection of persons or
entities described in the forgoing having a controlling interest in a partnership, association, corporation, organization, trust, or
any other legal entity or subsidiary formed for the purpose of owning real property in this state.
2
“Easement” defined, THE LAW OF EASEMENTS & LICENSES IN LAND § 1:1.
3
FLA.JUR.2D EASEMENTS §1. BILL: CS/SB 814 Page 3
providing a private alternative to taxation; and they permit the creation of stable arrangements
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.
4
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.
5
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.
6
At common law, a landowner may not create an easement or other servitude over his or her own
lands.
7
This is commonly referred to as a "unity of title." 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.
8
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
4
Restatement (Third) of Property (Servitudes) § 1.1 (2000).
5
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.
6
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.
7
Winthrop v. Wadsworth, 42 So. 2d 541, 543-44 (Fla. 1949).
8
One Harbor Financial Ltd. Co. v. Hynes Properties, LLC, 884 So. 2d 1039 (Fla. 3rd DCA 2004). BILL: CS/SB 814 Page 4
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
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.
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III. Effect of Proposed Changes:
Real Property Ownership by Certain Foreign Persons and Entities
The bill amends the statutes creating land ownership restrictions for individuals and entities
associated with the foreign countries of concern—China, Russia, Iran, North Korea, Cuba, Syria,
and the Venezuelan regime of Nicolas Maduro.
The bill creates the following definitions:
"Business entity" is defined by cross-reference to s. 606.03, F.S. That statute defines
"business entity" to mean "any form of corporation, partnership, association, cooperative,
joint venture, business trust, or sole proprietorship that conducts business in this state." This
new definition is an addition to the statute.
“Controlling interest” is defined to mean "the possession of the power to control access to or
the use or management of a parcel of real property through ownership interests in or
securities of a business entity or entities that own the parcel of real property, or through
direct ownership interests in a parcel of real property. A business entity or person who
directly or indirectly has an ownership interest of 25 percent or more of a parcel of real
property is presumed to have a controlling interest." This new definition is an addition to the
statute.
A "de minimus indirect interest" is defined as either:
o Owning less than 5 percent of any class of registered equities;
o Owning less than 5 percent in the aggregate in multiple classes of registered equities; or
o Owning a noncontrolling interest (less than 25%, see above) in an entity controlled by a
company that is both registered with the United States Securities and Exchange
Commission as an investment adviser under the Investment Advisers Act of 1940, as
amended,
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and is not a foreign entity.
This definition of "de minimus" is in the current version of each of the 3 prohibitions, and is
removed from the 3 statutes and placed in the definitions section.
A "foreign principal" is defined by current law, the term determines the persons who are
regulated by the restrictions regarding agricultural lands and lands near critical infrastructure or
near a military base. The bill amends the definition "foreign principal" to add that a holder of a
current verified visa to enter the United States which does not limit the holder to tourist-based
travel, or a holder of official documentation confirming that the person has been granted asylum
in the United States, is not a foreign principal. The effect of this change to the definition is that
an individual who holds a valid United States visa other than a tourist visa, or who has been
granted asylum in the United States, is not prohibited by ss. 693.202 or 693.203, F.S., from
9
King v. Roorda, 355 So. 3d 1001 (Fla. 2d DCA 2023).
10
15 U.S.C. § 80b-1 through 15 U.S.C. § 80b-21. BILL: CS/SB 814 Page 5
owning an interest in agricultural land, land near critical infrastructure, or land near a military
base.
The bill also creates an exception to allow a foreign principal to own agricultural land or land
near critical infrastructure or near a military base for the primary purpose of development and
sale of residential units. The foreign principal must provide an affidavit to the Department of
Commerce certifying the qualifying intent to develop the land.
Parallel to the changes regarding agricultural land and land near critical infrastructure, the bill
amends the prohibition against any land ownership by China or Chinese principals at s. 692.204,
F.S., to allow an individual citizen of China who holds a valid United States visa other than a
tourist visa, or who has been granted asylum in the United States, to have a controlling interest in
Florida real property and to allow ownership with the intent of residential subdivision.
As to land ownership by foreign persons, the bill also changes references to the Department of
Economic Opportunity to reference the Department of Commerce in recognition of the 2023
change of the department's name.
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The bill also makes numerous grammar and style
improvements to Part III of ch. 692, F.S.
Real Property Ownership and Use of Easements and Other Servitudes
The bill allows the owner of real property to create easements, servitudes, and other interests in
real property, notwithstanding the fact that the owner owns all of the affected real property.
The bill validates an easement, servitude, or other interest in real property created prior to the
effective date of the bill unless invalidated by a court for a reason other than unity of title. The
bill provides that it is the intent of the Legislature to respect the intent of parties to real property
transactions that occurred before the effective date of this act and the parties’ reliance on
easements, servitudes, or other interests created by those transactions.
Effective Date
The bill takes effect upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
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Chapter 2023-173, L.O.F. BILL: CS/SB 814 Page 6
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The bill applies to existing easements, servitudes, and other similar agreements. 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 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.”
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V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Passage of the bill has no apparent fiscal impact. The changes regarding ownership by
specified persons will likely have a negligible effect on the real estate market. The
changes regarding easements confirm current existing legal relationships and thereby
help the private sector avoid litigation.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 692.201, 692.202,
692.203, and 692.204.
12
Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). BILL: CS/SB 814 Page 7
This bill creates section 704.09 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on February 21, 2024:
The CS added the provisions that revise land ownership restrictions for individuals and
entities associated with the foreign countries of concern—China, Russia, Iran, North
Korea, Cuba, Syria, and the Venezuelan regime of Nicolas Maduro. As revised,
individuals from a foreign country of concern who have been granted asylum or have a
visa to enter the United States for more than tourism purposes will be fully authorized to
purchase and own land. Restrictions will remain in place for governments, government
entities, and foreign corporate entities. Additionally, the amendment allows a foreign
principal to own land for the purpose of residential development.
The provisions of the amendment relating to easements, servitudes, and other interests
affecting real property are substantively the same as those in the underlying bill, but
unnecessary verbiage is omitted. The effect of these provisions is to validate easements,
servitudes, and other interests, notwithstanding the fact that they were created when the
affected property was owned by the same owner. The amendment does not revitalize
easements that have been found invalid by a court.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.