New FL Statute Confirms Owner-Granted Easements on Commonly Owned Land
HB 799 establishes s. 704.09 F.S., which permits real property owners to create servitudes, such as easements and real covenants, on the owner’s real property despite the land being held in common ownership. It also validates similar arrangements made before the bill became law on June 27.
Commonly, developers and other real property owners create servitudes on their land or recorded real covenants prior to its division and sale. However, recent cases, including King v. Roorda and AFP 103 Corp. v. Common Wealth Trust Services, LLC, challenge the validity of certain servitudes established when the affected property is held in common ownership. This bill allows for the establishment of servitudes on property held in common ownership. It also retroactively validates all servitudes created before the bill’s effective date to prevent a major unraveling of decades of private land planning.
Recent Litigation Over Florida Servitude Rights
There have been a number of recent Florida cases that question the validity of certain servitudes established on property held by one common owner. The argument posed to Florida courts is that a servitude cannot exist between parcels of land held in common ownership, or in cases where the benefit and the burden of a servitude are held by one party.
Concerningly, many Florida property owners, including many developers, often record various servitudes or real covenants in the applicable public records prior to the sale of any portion of the property. A common reason this is done is to put all subsequent purchasers on notice of these servitudes, and potentially shift the costs onto an existing property association to establish and maintain certain utilities, roads, parks or other common areas in a planned community. Additionally, some land planning entities even require the establishment of servitudes before a property is divided.
These arguments pose a significant threat to decades of prior land planning on all property established with servitudes put in place during a period of common ownership. Additionally, these arguments are problematic for any property owner who purchased land in a property association with the belief that all prior covenants or servitudes would remain in place unless voted on by the association members.
How Does the Bill Affect Florida Property Owners?
The new bill establishes s. 704.09 F.S., which states a real property owner may create an easement, servitude or other interest in the owner’s real property even where the owner owns all of the affected property. Additionally, the statute explicitly states that an easement, servitude or other interest in real property created by an owner in the owner’s real property before the effective date of the act is valid unless invalidated by a court on grounds other than unity of title.
Please contact Christopher Berg, Kyle Mosey or any member of Phelps’ Real Estate team with questions or for advice and guidance.
