This article originally appeared in the Daily Business Review on July 11, 2024, and was written by Fabio Giallanza.
Creation of Easements by Property Owners-HB 799 Signed Into Law
On June 26, Gov. Ron DeSantis signed House Bill 799 (HB 799) into law. HB 799 allows property owners in Florida to create easements on their own land while retaining ownership of both the dominant and servient estate.
Most states follow the principle that an owner cannot create an easement on its own land. The rationale behind this is that all uses of an easement are already covered by the general right of fee ownership. This was also the common law in Florida prior to the new law.
However, Florida’s HB 799 significantly departs from this common law approach, by introducing a new Section 704.09 to the Florida Statutes, which enables property owners “to create an easement, servitude, or other interest in the owner’s real property.” The new law became effective immediately. Section 2 states that its application is retroactive “to respect the intent of the parties to real property transactions that occurred before the effective date of this act.”
The Common Law in Florida and Other States
Florida courts have so far followed the principle that “one cannot have an easement in his own land.” Property owners can create an easement at the time of conveying a part of their land by reserving the easement in the deed. Florida courts also recognize the possibility of implying the existence of easements, even in the absence of an express reservation, from a pre-existing use in the presence of absolute necessity.
The approach of Florida courts is consistent with the common law in most states and it is premised on the notion that ownership inherently includes the right to use property without restrictions. Therefore, establishing a separate easement would be illogical and unnecessary. Some states have codified this principle. For example, California Civil Code Section 805 (West 2022) states that “A servitude thereon cannot be held by the owner of the servient tenement.” The same principle is at the heart of the “doctrine of merger,” pursuant to which an easement is automatically terminated when the dominant and servient estate become vested in the same owner.
The New Law and Its Impact
The new law introduces the ability for property owners to create easements “notwithstanding that the owner owns all of the affected real property.” The law expressly provides for its retroactive effect, with a statement of policy indicating that “it is the intent of the Legislature to respect the intent of the parties to real property transactions that occurred before the effective date of this act and the parties’ reliance on such easements … .”
The statute does not contain a repeal of the doctrine of merger, which continues to be applicable in Florida. This creates somewhat of an inconsistency, leading to a situation in which, on one hand, the law respects easements created by property owners on their own land and, on the other hand, to the possibility of the inadvertent termination of easements when a property owner acquires both the dominant and servient estate.
Title reviewers will need to be very careful to spot easements created in documents filed prior to a granting deed, for example condominium declarations, even if such easements were not expressly reserved in the deed.
Conclusions
In summary, Florida’s House Bill 799 (HB 799) allows property owners to create easements on their own land while retaining ownership of both the dominant and servient estate. This departure will demand extra care in the title review process.
Read the original article in the Daily Business Review here.
