Does Florida Statute 704.01 apply to sumberged land / in this situation
UniqueLandInvestments
access to landlocked land.
The question / situation at hand;
Does statute 704.01 work to ensure access to SUBMERGED land.?
The submerged land in question is bordered on the north by a seawall,
and private property with no public road access.
So, to clarify, can I rely on Statute 704.01 for access to this
submerged land. Will it get me across the private property that has
the seawall that is contiguous to my submerged land?
I am looking for a definitive case law or other guidance that answers
this question.
Cy Pres
<TaxDeed...@yahoo.com> wrote:
>I am fairly familiar with Florida Statute 704.01 which regarding
>access to landlocked land.
>The question / situation at hand;
>Does statute 704.01 work to ensure access to SUBMERGED land.?
>The submerged land in question is bordered on the north by a seawall,
>and private property with no public road access.
You appear to have purchased, or intend to purchase, swampland in
Florida. This is such a bad idea under normal circumstances that it
is synonymous in the public vernacular with being swindled. My
sympathies if you are in this situation; but if you're merely thinking
of it, run, don't walk. Far, far away.
>So, to clarify, can I rely on Statute 704.01 for access to this
>submerged land. Will it get me across the private property that has
>the seawall that is contiguous to my submerged land?
No. At best, even if the statute guaranteed access across other
people's property, the owners of that property still might tell you to
go to hell, in which case you might be faced with having to litigate
the situation.
>I am looking for a definitive case law or other guidance that answers
>this question.
The practical issues here so completely outweigh the legal issues that
regardless of what the law says, it is so highly unlikely that
submerged land is worth anything at all that even getting involved in
such a situation isn't worth it, unless you know something I don't,
and even then, I'd be hard pressed to know what that could possibly
be.
I suppose there may be fraud remedies, if whoever sold this land isn't
already well out of the jurisdiction. It should be noted that further
attempts to sell the land might also be fraudulent, depending on other
laws I'm not even going to look at.
Mike
> On Sat, 12 Dec 2009 19:25:16 -0800 (PST), UniqueLandInvestments
> <TaxDeed...@yahoo.com> wrote:
>
>> I am fairly familiar with Florida Statute 704.01 which regarding
>> access to landlocked land.
>
>> The question / situation at hand;
>
>> Does statute 704.01 work to ensure access to SUBMERGED land.?
>> The submerged land in question is bordered on the north by a seawall,
>> and private property with no public road access.
>
> You appear to have purchased, or intend to purchase, swampland in
> Florida.
Yeah, it does seem like it, doesn't it?
This is such a bad idea under normal circumstances that it
> is synonymous in the public vernacular with being swindled. My
> sympathies if you are in this situation; but if you're merely thinking
> of it, run, don't walk. Far, far away.
>
>> So, to clarify, can I rely on Statute 704.01 for access to this
>> submerged land. Will it get me across the private property that has
>> the seawall that is contiguous to my submerged land?
>
> No. At best, even if the statute guaranteed access across other
> people's property, the owners of that property still might tell you to
> go to hell, in which case you might be faced with having to litigate
> the situation.
I think this fits more into the recent complaint a person or two had
with a recent response by Mr Jacobs in that they claimed it's
technically correct but yet doesn't mean a lot (although I didn't see Mr
Jacobs' answer as being such.) In ANY situation, for ANY given "right"
someone might tell you "go to hell" and you might have to litigate. What
he was basically wanting to know was IF he is told "go to hell" would
the law give him any backing for said litigation.
To answer the OP, I'd hazard a guess that 704.01 does say you have the
right to access to the nearest practical road whether the land is above
water or below. But I am not a lawyer so......
But also what is the land bordered by on the south, east and west? Is it
something that's out in the ocean or what?
>> I am looking for a definitive case law or other guidance that answers
>> this question.
>
> The practical issues here so completely outweigh the legal issues that
> regardless of what the law says, it is so highly unlikely that
> submerged land is worth anything at all that even getting involved in
> such a situation isn't worth it, unless you know something I don't,
> and even then, I'd be hard pressed to know what that could possibly
> be.
>
> I suppose there may be fraud remedies, if whoever sold this land isn't
> already well out of the jurisdiction. It should be noted that further
> attempts to sell the land might also be fraudulent, depending on other
> laws I'm not even going to look at.
I can see the land as having some sort of mineral rights potential
(people in Florida do dredge sand from some areas to fill in others and
there might be some other sort of mining potential) or even be an area
that could be backfilled and then put to use. So it's not necessarily
the case that it's totally fraudulent or worthless (but yeah, I'd guess
that it's more likely worthless than not.)
grendal
> Cy Pres wrote:
[SNIP]
> > I suppose there may be fraud remedies, if whoever sold this land isn't
> > already well out of the jurisdiction. �It should be noted that further
> > attempts to sell the land might also be fraudulent, depending on other
> > laws I'm not even going to look at.
>
> I can see the land as having some sort of mineral rights potential
> (people in Florida do dredge sand from some areas to fill in others and
> there might be some other sort of mining potential) or even be an area
> that could be backfilled and then put to use. So it's not necessarily
> the case that it's totally fraudulent or worthless (but yeah, I'd guess
> that it's more likely worthless than not.)
Here's the law:
704.01 Common-law and statutory easements defined and determined.--
(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 right-of-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 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.
1(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 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.
Here's a link to the full statute:
http://law.justia.com/florida/codes/TitleXL/ch0704.html
The OP didn't provide a lot of detail, so its hard to say what is
really going on.
I agree that if the parcel of land is 'land locked' and there's no
clear easement in place, that it would be foolish, really foolish, to
make the purchase.
The statement "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" makes me wonder about this though.
What's the history of the 'land locked' land?
Cy Pres
wrote:
>Cy Pres wrote:
>> On Sat, 12 Dec 2009 19:25:16 -0800 (PST), UniqueLandInvestments
>> <TaxDeed...@yahoo.com> wrote:
>> No. At best, even if the statute guaranteed access across other
>> people's property, the owners of that property still might tell you to
>> go to hell, in which case you might be faced with having to litigate
>> the situation.
[. . .]
>To answer the OP, I'd hazard a guess that 704.01 does say you have the
>right to access to the nearest practical road whether the land is above
>water or below. But I am not a lawyer so......
Actually finally having looked at that statute, since I didn't earlier
(the practical aspects of the situation pretty much predominating the
legal aspects), it probably would not grant access automatically,
except in very particular circumstances. The statute effectively
codifies the common law easement of necessity in Florida law.
I'm not going to go into more specifics, since I suspect the OP is the
same vexatious tax deed litigant we had earlier, and I can now imagine
a use for worthless swampland, not for actually using the land itself,
but for purchasing useless land and then suing neighbors for easements
in order to obtain nuisance value settlements.
The "tax teed investor" seems to indicate that, like the previous
"Land Trust" litigant, he purchased the land for failure to pay taxes.
This presumably would have resulted when the previous buyer, a swindle
victim, elected not to pay taxes on land with no best use and,
possibly, no means of accessing it. Now, if the neighbor(s) of the
land were in any way involved with the original swindle, they would
pretty much deserve what they get if someone subsequently pulled a
stunt like that, but one can't be sure of that.
I don't believe an honest person has anything to gain by being
involved in transactions concerning such a piece of land as described,
so I'm not interested in assisting in the process in any way.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>I'm not going to go into more specifics, since I suspect the OP is the
>same vexatious tax deed litigant we had earlier,
I wonder what finally happened in that case.
>The "tax teed investor" seems to indicate that, like the previous
>"Land Trust" litigant, he purchased the land for failure to pay taxes.
>This presumably would have resulted when the previous buyer, a swindle
>victim, elected not to pay taxes on land with no best use and,
>possibly, no means of accessing it. Now, if the neighbor(s) of the
>land were in any way involved with the original swindle, they would
>pretty much deserve what they get if someone subsequently pulled a
>stunt like that, but one can't be sure of that.
If the neighbors bought from the swindler who sold the swampland, or
if both the neighboring land and the swampland had been owned by the
same entity any time after the original land grants were made, then
(according to my reading) the easement would apply. If they were
originally different land grants, then it wouldn't.
That sort of leads to another question: what sort of use is the
easement required to provide for? The sort of driveway/pathway that's
fine for residential use is insufficient for some commercial use;
suppose the owner of the landlocked property wants to use it as a
gravel pit?
Seth
Mike
>
> (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.
<snip rest of statute>
> 1(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,
<snip rest of statute>
> Here's a link to the full statute:
> http://law.justia.com/florida/codes/TitleXL/ch0704.html
>
> The OP didn't provide a lot of detail, so its hard to say what is
> really going on.
>
> I agree that if the parcel of land is 'land locked' and there's no
> clear easement in place, that it would be foolish, really foolish, to
> make the purchase.
I TOTALLY agree with you there.
> The statement "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" makes me wonder about this though.
>
> What's the history of the 'land locked' land?
The two statutes, to me, seem to say "hey, there's this common law grant
of easement in many cases. However, where there isn't, we're creating
this statutory grant of easement when/where needed."
But I am not a lawyer so........
Robert Bonomi
Mike <prab...@shamrocksgf.com> wrote:
>grendal wrote:
>>
>> (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.
>
><snip rest of statute>
>
>> 1(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,
>
><snip rest of statute>
>
>of easement in many cases. However, where there isn't, we're creating
>this statutory grant of easement when/where needed."
"Not exactly" applies. <grin> What Florida has is a statutory codification
of the former common-law grant of a way of necessity. This law _replaces_
the previously existing common-law.
Per the statute, the 'way of necessity' exists _if_and_only_if_ the
'inaccessible' property (call it plot A), and the property over which the
necessity access would run (plot B).
Note well that the 'way of necessity' access is established _when_ the
original plot is sub-divided into A and B (and possibly C, D, E, etc.).
if the landlocked parcel (A) is subsequently further sub-divided, and one
or more of those sub-divisions does not have access to the point on plot
(B) that the owner thereof has specified for the easement access, then
there is a 'necessity' grant through the sub-division(s) of A needed to
reach _that_ point. *EVEN*IF* there is a 'shorter', or more direct
path to 'public' access over other property that was once owned in common
with both plots (A) and (B).
If the OP's 'submerged land' was sub-divided from _other_ submerged land,
his way of necessity runs only through that other submerged land. If it
was a sub-divided part of a _large_ tract of submerged swampland, he may
have to go many miles through the swamp exercising his easement rights.
This is 'title research' that _SHOULD_ have been done -- as part of what is
known as 'due diligence' -- _before_ making the offer to purchase. Failure
to do so means that 'caveo alligator', as well as 'caveat emptor' applies.
<grin>