Florida Easements, Landlocked Property and Eminent Domain Laws

In Florida, the period for a prescriptive easement comes from case law: in Downing v. Bird, 100 So. 2d 57 (Fla. 1958), a dispute over a road claimed for public use, the Florida Supreme Court required proof of continued and uninterrupted use "for a period of at least twenty years," shown by "clear and positive proof," and Florida's district courts of appeal apply the same 20-year period to private easements. On eminent domain, Fla. Stat. § 73.014(2) bars the state and every entity holding the power of eminent domain from taking private property "for the purpose of preventing or eliminating slum or blight conditions," and article X, section 6(c) of the Florida Constitution restricts handing condemned property to private parties.

Florida also gives the owner of landlocked land used, or meant to be used, for a home, farming, timber or stockraising a statutory way of necessity (Fla. Stat. § 704.01(2)), with a circuit court setting the route and the compensation (§ 704.04). This page covers both halves of Florida law: easements between private landowners first, then the power to take private property for public use. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Florida state law on private easements (prescriptive easements, statutory and implied ways of necessity under chapter 704, conservation and solar easements, and the Marketable Record Title Act in chapter 712) and on condemnation of private property under article X, section 6 of the Florida Constitution and Florida Statutes chapters 73 and 74. It does not cover adverse possession of title (see Florida squatters' rights), HOA covenants, zoning, regulatory takings and Bert J. Harris Act claims, inverse condemnation, condemnation by the federal government (see eminent domain laws by state), or city and county ordinances.

Florida easement and eminent domain rules at a glance

An easement is a right to use someone else's land for a limited purpose, such as a driveway, a utility line or access to a landlocked parcel, without owning it. Florida mixes statute and case law: the landlocked-property rules are in chapter 704 of the Florida Statutes, while the prescriptive-easement period comes from the Florida Supreme Court.

How long does a prescriptive easement take in Florida?

Florida's prescriptive-easement rules come from the courts. The leading Florida Supreme Court decision, Downing v. Bird, 100 So. 2d 57 (Fla. 1958), described how prescription works:

"In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner."

In that case, the court said the defendants had to allege and, "by clear and positive proof, to prove (1) that the public had the continued and uninterrupted use or enjoyment of the plaintiff's lands for a roadway for a period of at least twenty years." The court added that the use "must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it," and that where a way is claimed, the proof "must show a reasonably certain line, by definite route and termini."

Florida's district courts of appeal apply the same 20-year period to private easements. In Crigger v. Florida Power Corp., 436 So. 2d 937 (Fla. 5th DCA 1983), a dispute over a power line across private land, the Fifth District wrote that "At common law and in this state 20 years is required to create a prescriptive easement." It listed what a claimant must prove: actual use of another's land, continuous and uninterrupted for 20 years, with the owner's actual knowledge or so open, notorious and visible that knowledge is imputed, over a definite route with a reasonably certain line, width and termini, and adverse to the owner (without permission, under a claim of right other than permission, exclusive of the owner or inconsistent with the owner's rights, and such that the owner had a cause of action against the user throughout the period). The Second District applied twenty years to a claim over an unpaved road across a neighbor's land in Phelps v. Griffith, 629 So. 2d 304 (Fla. 2d DCA 1993).

Use is presumed to be permissive

Downing puts the burden on the person claiming the easement. The court wrote that "the use or possession is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse." It added that this element, "as well as all others must be proved by clear and positive proof."

In practice, that means an owner who has let a neighbor cross the land starts with a legal presumption on the owner's side. The claimant has to overcome it with evidence that the use was adverse, under a claim of right, and continuous for the full period.

Prescriptive easements versus adverse possession

Prescription and adverse possession are related but not the same. A prescriptive easement gives a right to use land for a purpose, such as a road; adverse possession gives title to the land itself. Florida's limit on actions to recover real property is 7 years: Fla. Stat. § 95.12 provides that "No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person's ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action." That 7-year clock is a different rule from the 20-year period the court applied in Downing. For the separate requirements of adverse possession of title, see Florida squatters' rights and adverse possession, and for other filing deadlines see the Florida statute of limitations guide.

Roads maintained by a government become public

A separate statute governs roads that a government has kept up. Under Fla. Stat. § 95.361(2), where a road was built by a nongovernmental entity, or by someone other than the entity now maintaining it, or where the builder cannot be determined, and the road "has been regularly maintained or repaired for the immediate past 7 years by a county, a municipality, or the Department of Transportation," the road "shall be deemed to be dedicated to the public to the extent of the width that actually has been maintained or repaired for the prescribed period." The subsection does not apply to an electric utility as defined in § 366.02(4). If the county, city or DOT built the road itself, 4 years of continuous maintenance is enough (§ 95.361(1)). For a subsection (2) road, a person claiming an interest in the property may file a claim against the maintaining government within 7 years after regular maintenance or repair began (or 1 year after the subsection took effect, if longer) to stop the maintenance and occupation, and a timely filed and adjudicated claim prevents the dedication (§ 95.361(4)). This is a public dedication rule, not a private easement between neighbors.

Can a Florida landowner stop a prescriptive easement from forming?

Chapter 704, Florida's easement chapter, contains no provision for posting a sign or recording a notice to stop a prescriptive easement from forming. The tool Florida law gives owners is the one in Downing: use is presumed to be with the owner's permission, and the claimant must prove otherwise by clear and positive proof.

Owners who open land to the public for recreation sometimes worry about liability. Fla. Stat. § 375.251(2)(a) provides that an owner or lessee "who provides the public with an area for outdoor recreational purposes owes no duty of care to keep that area safe for entry or use by others, or to give warning to persons entering or going on that area of any hazardous conditions, structures, or activities on the area." That limit "applies only if no charge is made for entry to or use of the area for outdoor recreational purposes and no other revenue is derived from patronage of the area for outdoor recreational purposes" (§ 375.251(2)(c)); an owner may take concession or special-event revenue and keep the protection only if that revenue is used exclusively to maintain, manage and improve the area. The protection does not cover "deliberate, willful, or malicious injury to persons or property" (§ 375.251(4)). For land offered to any person primarily for hunting, fishing or wildlife viewing, the owner must give written notice of the provision before or at entry or post it conspicuously on the area (§ 375.251(2)(b)). The statute deals with an owner's duty of care, not with whether use of the land can ripen into an easement.

Landlocked property: Florida's statutory way of necessity

Florida has a statute for landlocked land. Fla. Stat. § 704.01(2) creates a "statutory way of necessity exclusive of any common-law right," which means it does not depend on the old rule that the two parcels once had a common owner:

"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."

Three limits are built into that text:

• Use of the land. The statute covers land used, or desired to be used, for a dwelling, agriculture, timber raising or cutting, or stockraising. It does not list commercial or industrial uses.
• No practicable route. The land must have no practicable route to the nearest practicable public or private road in which the owner has vested easement rights. Section 704.03 defines "practicable" to mean "without the use of bridge, ferry, turnpike road, embankment, or substantial fill."
• Hemmed in by others. The land must be shut off by lands, fencing or other improvements of other persons.

The owner or tenant "lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service" over the nearest practical route, "provided that such easement shall be used only in an orderly and proper manner" (§ 704.01(2)). Where the land crossed is enclosed for farm or grove products or livestock and no compensation has been paid under § 704.04, the user must, at the servient owner's request, "erect and maintain either a cattle guard or a gate at each place where said easement intersects a fence" (§ 704.02).

How the statutory way is set and paid for

Section 704.04 sends disputes to the circuit court of the county where the land is located. "Either party or the board of county commissioners of such county may file suit" to determine whether the easement exists "and the amount of compensation to which said party is entitled for use of such easement." The court decides, in its discretion, "the type, duration, extent, and location of the easement, the amount of compensation, and the attorney's fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2)."

Compensation goes to a jury only on request: "if either of said parties so requests in her or his original pleadings, the amount of compensation may be determined by a jury trial." The statute ends with a timing rule that matters to both sides: "The easement shall date from the time the award is paid."

Implied easements: the common-law way of necessity and prior use

Florida keeps a separate, implied way of necessity alongside the statutory one, and the two have different requirements. Section 704.01(1) states the implied rule:

"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"

So the implied way needs a history of common ownership: unity of title from a common source, and that source cannot be the original grant from the state or the United States. The statutory way under § 704.01(2) does not need that history but is limited to the land uses it lists.

A third category, an easement implied from a use that existed before the land was divided, has a stricter test. In Tortoise Island Communities, Inc. v. Moorings Ass'n, 489 So. 2d 22 (Fla. 1986), the Florida Supreme Court took up "whether an easement by implication from a preexisting use requires an absolute necessity or only a reasonable necessity such as will contribute to the convenient enjoyment of property." The court agreed with the dissenting judge in the lower court that such an easement "required an absolute necessity," adopting that reasoning "as our own." Reasonable necessity, enough under § 704.01(1) for an implied way of necessity, is not enough for an easement implied from prior use.

Express, conservation and solar easements

Most easements are created in writing, in a deed or a separate grant, and recorded in the county's official records. To find out whether a recorded easement burdens a parcel, see our guide to Florida property records.

Florida law now lets an owner create an easement over land the owner already owns entirely. Fla. Stat. § 704.09(1), added by chapter 2024-268, provides: "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."

Two special easements have their own rules:

• Conservation easements. Under § 704.06(2), "Conservation easements are perpetual, undivided interests in property" that may be created in "any deed, will, or other instrument executed by or on behalf of the owner of the property, or in any order of taking." They "may be acquired in the same manner as other interests in property are acquired, except by condemnation or by other exercise of the power of eminent domain." That does not bar condemning land under a conservation easement for linear facilities such as power lines, pipelines and transportation corridors; in that case the court "shall consider the public benefit provided by the conservation easement and linear facilities" in deciding which lands may be taken and the compensation (§ 704.06(11)(a)).
• Solar easements. Under § 704.07(1), easements "obtained for the purpose of maintaining exposure of a solar energy device shall be created in writing and shall be subject to being recorded and indexed in the same manner as any other instrument affecting the title to real property."

How an easement ends in Florida

Chapter 704 contains no period of nonuse that ends an easement, though a statutory way of necessity awarded under § 704.04 "shall exist so long as such easement is reasonably necessary." A statute that can cut off old interests of record is Florida's Marketable Record Title Act, chapter 712, and it treats easements in use differently from other old interests.

Section 712.03(5) excepts from the Act's operation "Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof." An easement that is being used, even in part, keeps its full scope.

Easements disclosed in the chain of title from the root of title on are also excepted, but one created before the root of title is preserved that way only if a muniment of title identifies it in the legal description by official records book and page, instrument number or plat name, or contains an affirmative statement preserving it that identifies it by official records book and page or instrument number (§ 712.03(1), amended by chapter 2022-171). Rights of entry and easements reserved for mining, drilling or exploring for oil, gas or minerals, other than those held by the state, can be extinguished unless excepted, and may be preserved by filing a notice (§ 704.05).

For interests that could be cut off, § 712.05(1) lets a person claiming the interest preserve it by filing for record, "at any time during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with s. 712.06." Under § 712.05(3), a notice preserves the interest "for not less than 30 years after filing the notice unless the notice is filed again as required in this chapter," and "A person's disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period." The owner of the marketable record title does not need to file a notice to protect that title (§ 712.05(4)).

Some easements, including those for conservation, public-service lines and pipelines, drainage, and ingress and egress, survive a tax deed if recorded before it or, for public-service, drainage and access easements, shown by visible occupation such as poles, a waterway or a road (§ 197.572). A conservation easement may be released by its holder to the owner of the land (§ 704.06(4)).

Other ways an easement can end, such as a written release or abandonment, depend on the deed language and on case law outside the scope of this page.

Eminent Domain in Florida

Eminent domain is the power of the state, and of entities the Legislature has delegated it to, to take private property for public use in exchange for compensation. Florida's rules are in article X, section 6 of the state constitution and chapters 73 (ordinary condemnation) and 74 (quick-take) of the Florida Statutes. For how other states and the federal government handle condemnation, see our guide to eminent domain laws by state.

The constitutional rule is in article X, section 6(a):

"No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner."

The clause speaks only of property "taken"; it contains no "or damaged" language. Section 6(b) adds: "Provision may be made by law for the taking of easements, by like proceedings, for the drainage of the land of one person over or through the land of another."

Can Florida take property for a private developer?

At the federal level, the U.S. Supreme Court held in Kelo v. City of New London, 545 U.S. 469 (2005), that takings under an economic development plan, which "unquestionably serves a public purpose," satisfied the public use requirement of the Fifth Amendment, and it added that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." Florida placed such restrictions in 2006, through a constitutional amendment (H.J.R. 1569, adopted 2006) and a statute (chapter 2006-11).

No takings to abate nuisances or for slum or blight

Section 73.014(1) bars the state, its political subdivisions and every entity holding delegated power from using eminent domain "to take private property for the purpose of abating or eliminating a public nuisance," while leaving counties and cities free to enforce code-enforcement and nuisance ordinances "to the extent such ordinances do not authorize the taking of private property by eminent domain."

Fla. Stat. § 73.014(2) provides that "the state, any political subdivision as defined in s. 1.01(8), or any other entity to which the power of eminent domain is delegated may not exercise the power of eminent domain to take private property for the purpose of preventing or eliminating slum or blight conditions." The same subsection declares that a taking for that purpose "is not a valid public purpose or use for which private property may be taken by eminent domain and does not satisfy the public purpose requirement of s. 6(a), Art. X of the State Constitution."

Limits on handing condemned land to private owners

Article X, section 6(c) adds a transfer rule:

"Private property taken by eminent domain pursuant to a petition to initiate condemnation proceedings filed on or after January 2, 2007, may not be conveyed to a natural person or private entity except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature."

The rule applies only to property taken under a petition filed on or after January 2, 2007. Section 73.013(1), enacted by chapter 2006-11 (effective May 11, 2006), sets a similar statutory limit for petitions filed on or after that earlier date: ownership or control of property acquired under such a petition "may not be conveyed by the condemning authority or any other entity to a natural person or private entity, by lease or otherwise," except for listed purposes. The listed exceptions include conveyance:

• "For use in providing common carrier services or systems" (§ 73.013(1)(a));
• to an entity "That is a public or private utility for use in providing electricity services or systems, natural or manufactured gas services or systems, water and wastewater services or systems, stormwater or runoff services or systems, sewer services or systems, pipeline facilities, telephone services or systems, or similar services or systems" (§ 73.013(1)(c)); and
• "Without restriction, after public notice and competitive bidding unless otherwise provided by general law, if less than 10 years have elapsed since the condemning authority acquired title to the property" and two conditions are met: the condemning authority or governmental entity holding title documents that the property "is no longer needed for the use or purpose for which it was acquired," and "The owner from whom the property was taken by eminent domain is given the opportunity to repurchase the property at the price that he or she received from the condemning authority" (§ 73.013(1)(f)).

That last exception works as a buy-back opportunity: before condemned property no longer needed is sold to a private buyer within 10 years of acquisition, the former owner must be offered the chance to repurchase at the price the owner was paid. Once the condemning authority or a governmental entity has owned and controlled the property for at least 10 years, § 73.013(1)(g) allows conveyance after public notice and competitive bidding, unless general law provides otherwise, without that repurchase offer.

For Department of Transportation surplus land, § 337.25(4) requires, for most conveyances, a written right of first refusal to the previous owner at the department's current estimate of value, with at least 30 days to exercise it and at least 90 days to close. That right is not required for property acquired more than 10 years before disposal unless the previous owner, within 10 years after the acquisition, notified the district secretary by certified mail of an interest in reacquiring the property.

Who can use eminent domain in Florida: utilities, pipelines and the DOT

Florida delegates the power of eminent domain well beyond the state itself. These provisions show the range:

• Public works corporations. Fla. Stat. § 361.01 provides that the officers of "any corporation organized for the purpose of constructing, maintaining or operating public works" may enter lands "necessary to the business contemplated in the charter, and may appropriate the same ... upon making due compensation according to law to private owners."
• Utilities and pipelines. The utility exception in § 73.013(1)(c), quoted above, expressly includes "pipeline facilities," so the statutory transfer limit (petitions filed on or after May 11, 2006) does not stop conveyance to a public or private utility for those uses. Chapter 74's quick-take procedure is open to any "rural electric cooperative, telephone cooperative corporation, or public utility corporation" (§ 74.011), and other statutes, such as § 361.05 for natural gas companies, also allow use of chapter 74.
• Cities. A municipality may not use eminent domain unless its governing body adopts a resolution authorizing the acquisition for a municipal use or purpose designated in the resolution, and each municipality "shall strictly comply with the limitations set forth in ss. 73.013 and 73.014" (§ 166.401(3)-(4)).
• Department of Transportation corridors. Since chapter 2025-149 (SB 462), § 334.044(6) authorizes the DOT to acquire property by eminent domain that it determines is necessary to its duties, "including, but not limited to, in advance to preserve a corridor for future proposed improvements."

Other sections of chapter 361 grant condemnation power to specific companies. Natural gas companies, including certified natural gas transmission pipeline companies and entities regulated under the federal Natural Gas Act, "shall have the right of eminent domain and may use the provisions of chapters 73 and 74 to lay its pipelines and works" (§ 361.05). Common-carrier petroleum pipeline companies have the same rights, but no power to condemn property belonging to or operated by the state or its agencies, a county, school board, municipality or public body (§ 361.06). Railroads (§ 361.025), waterworks companies (§ 361.04) and sewer and wastewater reuse systems (§ 361.07) hold their own grants, and land taken for a sewer or reuse system reverts to the former owner or successor in title if the system is abandoned or stops operating. A landowner on a watercourse who wants to dam it for power for a public utility may condemn the opposite bank or land the dam would flood under the general condemnation law (§ 361.02).

Before the lawsuit: the presuit offer and notices

Florida requires a negotiation stage before a condemnation suit under chapter 73 or 74. Under Fla. Stat. § 73.015(1), "Before an eminent domain proceeding is brought under this chapter or chapter 74, the condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired, must provide the fee owner with a written offer and, if requested, a copy of the appraisal upon which the offer is based, and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel."

The presuit steps, as the statute states them:

• The notice. It must state that "within 15 business days after receipt of a request by the fee owner, the condemning authority will provide a copy of the appraisal report upon which the offer to the fee owner is based" (§ 73.015(1)(a)3.).
• The written offer. The offer must cover "the value of the property sought to be appropriated and, where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking" (§ 73.015(1)(b)).
• Time to respond. "The owner must be given at least 30 days after either receipt of the notice or the date the notice is returned as undeliverable by the postal authorities to respond to the offer, before the condemning authority files a condemnation proceeding for the parcel identified in the offer" (§ 73.015(1)(b)).
• Delivery. The notice and written offer "must be sent by certified mail, return receipt requested, to the fee owner's last known address listed on the county ad valorem tax roll" (§ 73.015(1)(c)).
• Notice of fee rights. Under § 73.0511, "Prior to instituting litigation, the condemning authority shall notify the fee owners of statutory rights under s. 73.091," the section on costs and attorney fees.

The 180-day business damage offer

Business owners face their own deadline. If a business qualifies for business damages under § 73.071(3)(b) (described below) and intends to claim them, the owner must, "within 180 days after either receipt of the notice or the date the notice is returned as undeliverable by the postal authorities, or at a later time mutually agreed to by the condemning authority and the business owner, submit to the condemning authority a good faith written offer to settle any claims of business damage" (§ 73.015(2)(c)).

The consequence of missing it is severe: "Absent a showing of a good faith justification for the failure to submit a business damage offer within 180 days, the court must strike the business owner's claim for business damages in any condemnation proceeding." If the court finds a good faith justification, it "shall grant the business owner up to 180 days within which to submit a business damage offer, which the condemning authority must respond to within 120 days."

The condemning authority then has 120 days after receiving the offer and accompanying business records to accept it, reject it or make a counteroffer by certified mail. "Failure of the condemning authority to respond to the business damage offer, or rejection thereof pursuant to this section, must be deemed to be a counteroffer of zero dollars for purposes of subsequent application of s. 73.092 (1)," the attorney-fee formula (§ 73.015(2)(d)).

Settling before suit

Section 73.015(4) covers owners who settle before a lawsuit is filed, but only in road right-of-way acquisitions; the subsection closes: "This shall only apply when the action is by the Department of Transportation, county, municipality, board, district, or other public body for the condemnation of a road right-of-way." Within that limit, a business or property owner "who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided in s. 73.091 and attorney's fees in the same manner as provided in s. 73.092." Fees for presuit negotiations over the land, severance damages and improvements "must be calculated in the same manner as provided in s. 73.092 (1) unless the parties otherwise agree" (§ 73.015(4)(a)). If the parties cannot agree on costs and fees, the owner "may file a complaint in the circuit court in the county in which the property is located to recover attorney's fees and costs" (§ 73.015(4)(d)).

The condemnation lawsuit: petition, summons and deadlines

A Florida condemnation case begins with a petition in circuit court. Under § 73.021, the petition must state, among other things, "The authority under which and the public use or purpose for which the property is to be acquired, and that the property is necessary for that public use or purpose" (§ 73.021(1)), and include "A statement that the petitioner has surveyed and located its line or area of construction, and intends in good faith to construct the project on or over the described property" (§ 73.021(6)).

The summons sets the owner's response date. Under § 73.031(1), it commands defendants "to serve written defenses to the petition on a day specified in the summons not less than 28 nor more than 60 days from the date of the summons," and the summons and petition must be served on all resident defendants "not less than 20 days before the return day."

Section 73.051 explains what happens at that date. Any person interested in the property "may file his or her written defenses to the petition, as a matter of right, on or before the return date set in the notice or thereafter by leave of court." A defendant who misses the return date may be defaulted, "but nothing shall prevent any person who is shown by the record to be interested in the property from appearing before the jury to claim the amount of compensation that he or she conceives to be due for the property."

Chapters 73 and 74 set no separate deadline for challenging the right to take beyond these two: written defenses by the return date in an ordinary case, and a request for a hearing before the order of taking in a quick-take case (covered next).

Quick-take: possession before final judgment

Chapter 74 lets certain condemning authorities take possession and title before the case ends. Under § 74.011, the procedure is available in an eminent domain action brought by "the state; the Department of Transportation; any county, school board, municipality, expressway authority, regional water supply authority, transportation authority, flood control district, or drainage or subdrainage district; the ship canal authority; any lawfully constituted housing, port, or aviation authority; or any rural electric cooperative, telephone cooperative corporation, or public utility corporation." That right is in addition to powers conferred by other laws (§ 74.021), and some grants, such as § 361.05 for natural gas companies and § 361.025 for railroads, expressly allow use of chapter 74.

The steps, as chapter 74 sets them out:

1. Declaration of taking. The petitioner files a declaration of taking and "shall make a good faith estimate of value, based upon a valid appraisal of each parcel in the proceeding, which shall be made a part of the declaration of taking" (§ 74.031).
2. Notice. The declaration of taking must be served on all resident defendants "in the manner provided by law for service of original process in eminent domain actions, and not less than 20 days prior to the date specified" (§ 74.041(1)). That date may not be set earlier than 1 day after the return date in the § 73.031 summons, by which written defenses and any hearing request are due (§ 74.041(3)).
3. The owner's hearing. A defendant who requests a hearing "may appear and be heard on all matters properly before the court which may be determined prior to the entry of the order of taking, including the jurisdiction of the court, the sufficiency of pleadings, whether the petitioner is properly exercising its delegated authority, and the amount to be deposited for the property sought to be appropriated." The statute adds: "Any defendant failing to file a request for hearing shall waive any right to object to the order of taking" (§ 74.051(1)).
4. The deposit. The deposit "shall not be less than the amount of the petitioner's estimate of value, if the petitioner be the state or any agency thereof, any county, the city, or other public body; otherwise, double the amount of petitioner's estimate of value" (§ 74.051(2)). If the deposit "is not made within 20 days from the date of the order of taking, the order shall be void and of no further effect" (§ 74.051(4)).
5. Title. "Immediately upon the making of the deposit, the title or interest specified in the petition shall vest in the petitioner" (§ 74.061).
6. Possession. The court may fix the time and terms on which owners must surrender possession; for a defendant who did not request a hearing, possession is due upon deposit, and that deposit date is the date of valuation (§ 74.051(1), (4)).

The case then continues to a jury verdict on compensation. If the verdict is higher than the estimate, interest is allowed "at the same rate as provided in all circuit court judgments from the date of surrender of possession to the date of payment on the amount that the verdict exceeds the estimate of value set forth in the declaration of taking" (§ 74.061).

Owners may ask to withdraw the deposited estimate before final judgment. Under § 74.071, the court "may direct that the sum of money set forth in the declaration of taking be paid forthwith to such defendants." If the final award is larger, the court enters judgment against the petitioner for the deficiency. If the amount withdrawn exceeds the final award, the court enters judgment against the defendant for the excess, which "shall be a lien against any of the defendant's property except his or her homestead."

How just compensation is calculated in Florida

A Florida jury, not a judge or commissioners, decides what the owner is paid. Under § 73.071(1), "When the action is at issue, and only upon notice and hearing to set the cause for trial, the court shall impanel a jury of 12 persons." The jury "shall determine solely the amount of compensation to be paid" (§ 73.071(3)).

Valuation date and project influence

"The amount of such compensation shall be determined as of the date of trial, or the date upon which title passes, whichever shall occur first" (§ 73.071(2)). In a quick-take case, title vests when the deposit is made (§ 74.061).

Value changes caused by the project itself are excluded. Under § 73.071(5), "Any increase or decrease in the value of any property to be acquired which occurs after the scope of the project for which the property is being acquired is known in the market, and which is solely a result of the knowledge of the project location, shall not be considered." The scope "shall be presumed to be known in the market on or after the condemnor executes a resolution which depicts the location of the project."

Partial takings and severance damages

Compensation includes "The value of the property sought to be appropriated" (§ 73.071(3)(a)) and, "Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking" (§ 73.071(3)(b)).

For right-of-way takings, any increase in the remainder's value from the project can be offset, but only against damages. Under § 73.071(4), when the Department of Transportation, a county, municipality, board, district or other public body condemns "a road, canal, levee, or water control facility right-of-way," the enhancement in value of the owner's remaining adjoining property "shall be offset against the damage, if any, resulting to such remaining adjoining property," but "such enhancement in the value shall not be offset against the value of the property appropriated."

Business damages

Section 73.071(3)(b) allows business damages where all of these are true:

• less than the entire property is being taken;
• the action is "by the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way";
• the taking "may damage or destroy an established business of more than 4 years' standing before January 1, 2005, or ... an established business of more than 5 years' standing on or after January 1, 2005";
• the business is "owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party."

The measure is "the probable damages to such business which the denial of the use of the property so taken may reasonably cause," and "any person claiming the right to recover such special damages shall set forth in his or her written defenses the nature and extent of such damages." The 180-day presuit business damage offer described above also applies.

No extra percentage for homes

Chapter 73's compensation, cost and fee sections (§§ 73.071, 73.091, 73.092) contain no premium or extra percentage for an owner-occupied home, and chapter 74's quick-take sections (§§ 74.011, 74.031, 74.061) add none. Two items concern mobile homes: where a taking requires a mobile home (other than a travel trailer) to be moved, compensation includes the mobile home owner's reasonable removal or relocation expenses, not to exceed the home's replacement value, unless the condemning authority must pay those expenses under other law, and the mobile home owner must set out the nature and extent of those expenses in his or her written defenses (§ 73.071(3)(c)); and a mobile home owner leasing a park site may receive separately determined compensation for permanent improvements to the site, under the conditions in § 73.072.

Attorney fees and costs in Florida condemnation cases

Florida generally makes the condemning authority pay the owner's lawyer. Section 73.091(1) provides: "The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees and, when business damages are compensable, a reasonable accountant's fee, to be assessed by that court. No prejudgment interest shall be paid on costs or attorney's fees."

The benefits-achieved formula

Section 73.092(1) opens: "Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client."

"Benefits" means "the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired" (§ 73.092(1)(a)).

The schedule in § 73.092(1)(c):

The percentages stack: each applies only to the portion of the benefit in its band.

The court may also consider nonmonetary benefits that it specifically identifies and can quantify within a reasonable degree of certainty (§ 73.092(1)(b)). For business damages, benefits are measured from the condemning authority's written counteroffer to the business damage offer or, if material business records were not provided, from its first written counteroffer within 90 days after receiving them (§ 73.092(1)(a)1.-2.). The defendant must give the court any fee agreement with the attorney, and the fee the defendant owes is reduced by the fee the court awards (§ 73.092(5)).

A different measure applies to other work. Fees "incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for," are assessed under factors the court must consider in § 73.092(2), rather than the benefits schedule. At least 30 days before a hearing to assess those fees, the owner's attorney must submit "complete time records and a detailed statement of services rendered" to the condemning authority and the court (§ 73.092(4)). A similar 30-day rule applies to expert witness time records before a costs hearing (§ 73.091(2)).

Offers of judgment

Section 73.032 adds an offer-of-judgment procedure. The petitioner "may serve a defendant with an offer of judgment no sooner than 120 days after the defendant has filed an answer and no later than 20 days prior to trial" (§ 73.032(2)). A defendant may offer to take judgment "only for an amount that is under $100,000," served no sooner than 120 days after the defendant's answer and no later than 20 days before trial (§ 73.032(3)). An offer "shall be deemed rejected unless accepted by filing both a written acceptance and the written offer with the court within 30 days after service of the offer, or before the trial begins if less than 30 days" (§ 73.032(4)(c)).

Rejecting the petitioner's offer carries a cost risk: if the defendant does not accept it "and the judgment obtained by the defendant, exclusive of any interest accumulated after the offer of judgment was initially made, is equal to or less than such offer, then the court shall not award any costs incurred by the defendant after the date the offer of judgment was rejected" (§ 73.032(5)). The rule also runs the other way: if the petitioner rejects a defendant's offer and the judgment, exclusive of interest accumulated after the offer, "is equal to or is more than such offer, then the court shall award a reasonable attorney's fee to the defendant based on the factors set forth in s. 73.092(2) and (3)" (§ 73.032(6)).

Appeals

On appeal, "The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney's fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the lower court shall be affirmed" (§ 73.131(2)). If, after judgment, a defendant takes the amount due out of the court registry, any appeal that defendant has taken "shall be dismissed by the appellate court upon the filing of a certificate by the clerk of the circuit court" stating that the amount was withdrawn (§ 73.131(1)).

Judgment, payment and possession

In an ordinary (non-quick-take) case, the condemning authority must pay into court promptly or lose the case. Section 73.111 provides: "Within 20 days after the rendition of the judgment, the petitioner shall deposit the amount set forth therein into the registry of the court for the use of the defendants, or the proceeding shall be null and void, unless for good cause further time, not exceeding 60 days, is allowed by the court."

Once the deposit is made, the judgment is entered in the clerk's records and the clerk certifies that the compensation has been paid into court, "the estate or interest sought shall vest in the petitioner," and "The court may fix the time within which, and the terms upon which, the defendants shall be required to surrender possession to the petitioner" (§ 73.111). An appeal "shall not prevent appropriation of the property by the petitioner where the amount awarded by the judgment has been deposited with the court" (§ 73.131(1)).

Relocation assistance in Florida

Florida's relocation rules follow federal standards. Fla. Stat. § 421.55(3) authorizes the state, when acquiring real property "for use in any public project or program in which federal or federal-aid funds are used, to make all such relocation and other payments to or for displaced persons as are required under the provisions of Pub. L. No. 100-17," and to provide relocation services and replacement dwellings as that law requires.

For transportation projects without federal aid, § 339.09(3) lets the Department of Transportation spend transportation tax revenues "pursuant to rules adopted by the department, on non-federal-aid projects which shall include relocation assistance and moving costs to persons displaced by transportation facilities or other related projects. Such rules shall, in no case, exceed the provisions of the Surface Transportation and Uniform Relocation Assistance Act of 1987." The section adds that this authority "does not extend to the power of eminent domain."

At the federal level, 42 U.S.C. § 4655(a) conditions federal financial assistance on assurances that the acquiring agency "will be guided, to the greatest extent practicable under State law, by the land acquisition policies in section 4651" of the federal Uniform Relocation Act. The national guide to eminent domain laws by state covers federal relocation payments and their current limits.

Chapters 73 and 74 do not set a limitations period for inverse condemnation claims (an owner's claim for compensation for a taking where no condemnation case was filed), and this page does not cover that subject.

Recent changes to Florida easement and eminent domain law

• Chapter 2025-149 (SB 462, 2025). Amended § 334.044(6) so that the Department of Transportation's power to acquire property by eminent domain includes acquiring it "in advance to preserve a corridor for future proposed improvements." The act took effect July 1, 2025, except as otherwise provided in the act.
• Chapter 2024-268 (2024). Added § 704.09, which lets an owner create an easement or other interest in the owner's real property even when the owner owns all of the affected property.
• 2006 reforms. The constitutional transfer limit in article X, section 6(c) (adopted 2006) and chapter 2006-11, which enacted §§ 73.013 and 73.014, remain the core of Florida's post-Kelo rules.

Related Florida guides

• Easement laws by state
• Eminent domain laws by state
• Florida squatters' rights and adverse possession
• Florida property records
• Florida statute of limitations

Disclaimer: This article provides general legal information about Florida easement and eminent domain law as of 2026-10-19. It is not legal advice. Easement and condemnation disputes turn on specific facts, deeds and deadlines; for advice about a specific situation, contact a lawyer licensed in Florida.

Last updated: 2026-10-19.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Florida?

Florida's period comes from case law. In Downing v. Bird (Fla. 1958), a case about a road claimed for public use, the Florida Supreme Court required proof of continued and uninterrupted use for at least 20 years, adverse under a claim of right, shown by clear and positive proof. Florida's district courts of appeal apply the same 20 years to private easements (Crigger v. Florida Power Corp., Fla. 5th DCA 1983). Use is presumed to be with the owner's permission.

Is the 7-year adverse possession period the same for easements in Florida?

No. Fla. Stat. § 95.12 sets a 7-year limit on actions to recover real property, which relates to possession of the land itself. Florida courts apply a 20-year period to prescriptive easements (Downing v. Bird, Fla. 1958; Crigger v. Florida Power Corp., Fla. 5th DCA 1983).

What can I do if my land is landlocked in Florida?

Fla. Stat. § 704.01(2) creates a statutory way of necessity for land used or desired to be used for a dwelling, agriculture, timber or stockraising that has no practicable route to the nearest practicable public or private road. Either party or the board of county commissioners may sue in circuit court, which sets the location and compensation; the easement dates from payment of the award (§ 704.04).

What is an easement by necessity in Florida?

Under Fla. Stat. § 704.01(1), an implied way of necessity exists where there is no other reasonable and practicable way in or out and it is reasonably necessary for use of the land, but only where unity of title exists from a common source other than the original grant from the state or United States. An easement implied from a preexisting use requires absolute necessity (Tortoise Island, Fla. 1986).

Can an old easement be wiped out by Florida's Marketable Record Title Act?

Section 712.03(5) excepts recorded or unrecorded easements from the Act so long as they are used, and use of any part keeps the right to the entire use. Other interests subject to extinguishment can be preserved by recording a notice during the 30-year period after the root of title (§ 712.05).

Can Florida use eminent domain for private development?

Fla. Stat. § 73.014(1)-(2) bars every condemning authority from taking private property to abate or eliminate a public nuisance or to prevent or eliminate slum or blight conditions. For petitions filed on or after January 2, 2007, property taken may not be conveyed to a private person or entity except as general law passed by a three-fifths vote of each house provides (Fla. Const. art. X, § 6(c)); § 73.013, which applies to petitions filed on or after May 11, 2006, lists permitted conveyances, such as for common carrier services and utilities.

Can Florida take land for a pipeline?

Natural gas companies, including certified natural gas transmission pipeline companies and entities regulated under the federal Natural Gas Act, have the right of eminent domain and may use chapters 73 and 74 to lay their pipelines (Fla. Stat. § 361.05). Common-carrier petroleum pipeline companies have the same rights but cannot condemn property belonging to or operated by the state or a local public body (§ 361.06). For property taken under petitions filed on or after May 11, 2006, § 73.013(1)(c) also allows conveyance to a public or private utility for uses that include pipeline facilities.

How long do I have to respond to an eminent domain offer in Florida?

The condemning authority must give the owner at least 30 days after receiving the notice, or after it is returned undeliverable, to respond before filing suit (Fla. Stat. § 73.015(1)(b)). A business that qualifies for business damages and intends to claim them must submit a written offer to settle them within 180 days, or a later time agreed with the condemning authority (§ 73.015(2)(c)).

Does the government pay attorney fees in Florida eminent domain cases?

Generally yes. Except as § 73.092 and § 73.015 otherwise provide, the condemning authority pays fees based solely on benefits achieved: 33% of the benefit up to $250,000, 25% of the portion between $250,000 and $1 million, and 20% above $1 million, plus reasonable costs including appraisal fees (§§ 73.091, 73.092). Costs incurred after rejecting a petitioner's offer of judgment are not awarded if the judgment, exclusive of interest accumulated after the offer, is equal to or less than that offer (§ 73.032(5)); if the petitioner rejects a defendant's offer and the judgment equals or exceeds it, the court awards the defendant a reasonable attorney's fee (§ 73.032(6)).

What is quick-take eminent domain in Florida?

Chapter 74 lets the public bodies listed in § 74.011, rural electric and telephone cooperatives, public utility corporations, and companies other statutes authorize (such as natural gas companies under § 361.05) take possession and title before final judgment by filing a declaration of taking with a good faith estimate of value. Title vests when the deposit is made (§ 74.061), and a defendant who does not request a hearing waives any right to object to the order of taking (§ 74.051(1)).

Does Florida pay extra for a home taken by eminent domain?

Chapter 73's compensation, cost and fee sections (§§ 73.071, 73.091, 73.092) contain no extra percentage for an owner-occupied home. Where a mobile home (other than a travel trailer) must be moved, compensation includes reasonable removal or relocation expenses up to the home's replacement value, unless other law requires the condemning authority to pay them, and the owner must set out those expenses in written defenses (§ 73.071(3)(c)). On projects using federal or federal-aid funds, § 421.55(3) authorizes relocation payments required by federal law.