Questions Raised as Florida’s Longstanding Common Law Merger Doctrine Conflicts with New Legislation

House Bill 799 was signed into law by Gov. Ron DeSantis and became effective on June 26, 2024. Through this legislation, codified in Section 704.09 of the Florida Statutes, the Florida Legislature created a new tool by which property owners can ensure the use of real property matches their expectations. But, will it become the subject of litigation?

By John J. Campo, Carlee G. Mattison, and L. Ben Alexander, Jr.

The right of an individual to acquire, possess, and convey real property is fundamental to our society and economy. In Florida, the scope of private property rights is derived from principles rooted in common law, case law, and statutory law. One significant principle that has become the subject of recent legislation is private land use arrangements that burden and “run with the land” so as to bind all future owners of the real property.

These private land use arrangements, generally known as “servitudes,” allow for long-term property use arrangements that can be used for many different purposes. Two of the most commonly recognized and used servitudes in Florida are easements (a nonpossessory right of use or enjoyment in another person’s land for a specific use or purpose) and covenants (restrictions on the use of property). With respect to easements, Florida courts have consistently applied the common law merger doctrine, which prevents an owner from creating an easement on their own property by automatically terminating any easements that exist when the dominant and servient estate are vested in the same owner. See, e.g., King v. Roorda, 355 So. 3d 1001, 1003 (Fla. 2d DCA 2023) (noting that one cannot grant oneself an easement in one’s own property). The rationale behind the merger doctrine is that a property owner has the right to freely use their property without any restrictions and therefore, it would be unnecessary for an owner to create an easement on their own property.

With respect to covenants, developers of real property have long recorded covenants, conditions, and restrictions against real property, both commercial and residential, governing its future use and enjoyment. These covenants frequently provide future owners in a subdivision with easement rights, such as access rights over private platted streets, even though such covenants are typically recorded while the developer is still the fee simple owner of all of the property subject to the covenants. While convenient for property owners, the creation of easements in these documents runs afoul of the common law merger doctrine. As such, recent Florida case law has called the validity of these kinds of easements into question, thereby threatening to frustrate the expectations of both property owners and developers, and undermine decades of common practices in land development. This in turn led to the enactment of House Bill 799.

Florida House Bill 799 Explained

Through House Bill 799, the Florida Legislature created a new tool by which property owners can ensure the use of real property matches their expectations by enabling property owners to create easements, servitudes, and other interests in the their real property, whether commercial or residential, notwithstanding the fact that they own all of the real property affected. House Bill 799 is codified in Section 704.09, Fla. Stat., which states as follows:

1. An owner of real property may create an easement, servitude, or other interest in the owner’s real property, notwithstanding that the owner owns all of the affected real property.
2. An easement, servitude, or other interest in real property created by an owner in the owner’s real property before the effective date of this act is valid unless invalidated by a court on grounds other than unity of title.

The intent behind the enactment of Section 704.09, Fla. Stat., is to protect the long-term property use arrangements noted above that have been implemented in Florida for decades and threatened by recent case law. See AFP 103 Corp. v. Common Wealth Tr. Servs., LLC, 2023 WL 7013226 (Fla. 3d DCA 2023). Although Section 704.09, Fla. Stat., appears to be a stark departure from the common law of easements, which is based on the rationale that an owner of real property enjoys all of property rights by virtue of their ownership and therefore has no need or ability to grant themselves the more limited easement rights, the Florida Legislature has signified its willingness to continue the trend of moving real property law away from legal formalities toward a more practical approach that addresses the functional needs of real property owners. However, the enactment of Section 704.09, Fla. Stat., raises many significant questions and issues that are not addressed by the brief statute and may, instead, likely become the subject of litigation. For example: Does Section 704.09, Fla. Stat. override the merger doctrine? Is its retroactive application constitutionally permissible? How does it impact implied easements?

The Merger Doctrine: Can It Coexist?

As noted above, Section 704.09, Fla. Stat., and the common law merger doctrine are in direct conflict with one another. The merger doctrine would automatically extinguish any easements created by a single owner on solely their own property whereas Section 704.09, Fla. Stat., expressly provides for and validates such arrangements. How will these two principles co-exist, if at all? Does Section 704.09, Fla. Stat., override the merger doctrine? What happens if an owner creates an easement on their property pursuant to Section 704.09, Fla. Stat., and then sells their entire property to another person? What if an owner creates an easement, conveys the portion of the property subject to the easement, and thereafter reacquires the property subject to the easement? Whether the common law merger doctrine is essentially extinguished by the enactment of Section704.09, Fla. Stat. will likely be decided by the Florida courts, as the statute fails to address the issue at all.

Retroactive Application of Statute

Section 704.09, Fla. Stat., provides for a retroactive application in that it expressly states that any “easement, servitude, or other interest in real property created by an owner in the owner’s real property before the effective date [June 26, 2024] is valid unless invalidated by a court on grounds other than unity of title.” (emphasis added). In Florida, statutes are presumed to not be retroactive and if a newly-enacted statute is to be applied retroactively, a two-prong test promulgated by the Florida Supreme Court must be satisfied. To satisfy the test, (i) the legislation must clearly express an intent that it should apply retroactively, and (ii) the retroactive application must not violate any constitutional principles. See Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). Considering that Section 704.09, Fla. Stat., effectively validates any easement, servitude, or other interest in real property created by an owner in the owner’s real property before June 26, 2024, on the grounds that it was made pursuant to a unity of title, the constitutionality of the retroactive application of the statute may be challenged. However, it is unlikely that property owners created many formal easements on their own property prior to the enactment of the statute, so the natural targets of such litigation may be the covenants commonly recorded by developers. Most property owners generally have little incentive to challenge the constitutionality of such covenants that, for example, provide access rights over common areas in a development, so any challenges may be driven more by an academic belief that the retroactivity of Section 704.09, Fla. Stat., is unconstitutional rather than a desire to eliminate any existing easements or covenants.

Implied Easements

By permitting an owner to create easements on their own property, Section 704.09, Fla. Stat., may also potentially affect two existing narrow categories of implied easements—easements of necessity and easements implied from quasi-easements. Easements of necessity arise when real property becomes landlocked and lacks legal access. For example, if a property owner subdivides their property and sells the portion that abuts a roadway while retaining the now landlocked portion, an access easement is implied by reason of necessity. 

Easements implied from quasi-easements arise from an owner’s use of one part of their property to benefit another part of the same property, and the continued use remains necessary for the severed parcel after a conveyance. For example, a private sewer line running between two houses built on the same property ripens into an easement implied from a quasi-easement upon a sale of one of the houses, as the continued use of the sewer line is necessary, and the parties are therefore presumed to have intended the use to continue, even if a separate easement is not affirmatively created. So, both easements of necessity and easements implied from quasi-easements originate from property under unified ownership, but they are more limited in how they are created and what rights they can convey. 

Now that the Florida Legislature has created a mechanism for property owners to reserve themselves easements, will courts be less likely to affirm the creation of implied easements? Easements of necessity appear unlikely to be impacted by Section 704.09, Fla. Stat., as legal access is a basic property right that no court would divest an owner of. However, there is a chance that courts will now expect property owners to affirmatively create their own easements now that the Legislature has provided the option, rather than relying on easements implied from quasi-easements after the fact. The reasoning being that it would not make sense to presume the parties intended the prior use to continue when they failed to create the easement on their own. Ultimately, this also seems unlikely, as it would require courts to wield a statute intended to align real property law with property owners’ expectations as a cudgel against laypeople who may not understand the intricacies of easement law. However, it must be considered based on the enactment of Section 704.09, Fla. Stat.

Intent vs. Application of Section 704.09, Fla. Stat.

In sum, Section 704.09, Fla. Stat., was enacted in an effort to protect private property rights by enabling owners of real property to create easements, servitudes, and other interests in the owner’s real property. The intent of the Florida Legislature is to afford more options to property owners and prevent the upending of decades of prior land planning through the use of servitudes and private land use arrangements; however, Section 704.09, Fla. Stat., raises many significant questions that will only be answered as the statute is applied to individual cases.

John J. Campo is a member of Jones Foster’s Real Estate Practice Group and represents clients in transactions concerning acquisitions and dispositions as well as commercial leasing projects. Carlee G. Mattison, a member of Jones Foster’s Real Estate team, focuses her practice in the areas of acquisitions, dispositions, and commercial leasing. Jones Foster shareholder L. Ben Alexander, Jr. is a Florida Bar Board Certified Real Estate attorney who represents clients in high-end residential and commercial real estate transactions and facilitates partnerships between equity funds and developers.

Reprinted with permission from the Daily Business Review. © 2024 ALM Media Properties, LLC.

The information provided in this article does not, and is not intended to, constitute legal advice; it is for general informational purposes only. No reader of this article should act or refrain from acting on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction to ensure the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.