In short: No. A landowner seeking a statutory way of necessity across a neighbor’s land must prove the facts behind each element, and a verified complaint that only repeats the words of the statute is not enough to win summary judgment. In Vitelli v. Hagger, a Marion County court granted neighbors an easement across the defendants’ parcel based on little more than their sworn complaint. On April 12, 2019, the Fifth District reversed in a written opinion and sent the case back for further proceedings.
The Facts
Emil and Caroline Hagger owned a parcel (Parcel A) separated from their other parcel (Parcel B), which fronts on SE 141st Avenue Road, by a strip owned by Mario Vitelli and Carol Bartholomew as trustees (Parcel C). The Haggers sued for a statutory way of necessity across Parcel C. Their verified complaint tracked the statute: the land was used or desired for one of the listed purposes, it was hemmed in by the lands of others, and the nearest practical route crossed Parcel C.
The Vitellis denied the land was hemmed in and raised an affirmative defense that an implied easement existed over other adjacent lands. After their lawyer withdrew, the Haggers moved for summary judgment. Dr. Bartholomew asked for more time to hire a new lawyer, which was denied, and the court granted summary judgment and fees to the Haggers. Mr. Vitelli died while the appeal (No. 5D2018-2159) was pending. The points below are what the lawyers argued, not findings by the court.
- Jean Benoit Roth, for the Vitelli side, argued the verified complaint was a conclusory, self-serving affidavit that could not support summary judgment. It did not say which use was planned, what hemmed the land in, or where the parcels sat.
- He argued the Haggers never pleaded or proved the absence of a common law way of necessity, that fees were awarded without any pleading or finding of unreasonable refusal under section 704.04, and that denying a pro se defendant more time to retain counsel violated due process.
- Lawrence Callaway, for the Haggers, argued the sworn statement that the land was hemmed in was a statement of fact covering every element, that the defendants offered no admissible contrary evidence, and that the Haggers planned to use the land as part of a horse farm.
- The panel pressed him on whether swearing to the statutory words is proof, whether anything showed there was no common law way of necessity, and whether fees could be awarded without pleading or a finding of unreasonable conduct.
The Decision
The Fifth District reversed the final summary judgment and remanded for further proceedings in a written opinion issued April 12, 2019, Vitelli v. Hagger, 268 So. 3d 246 (Fla. 5th DCA 2019).
The court accepted that a verified complaint can serve as an affidavit, but this one merely repeated the statute. It did not identify the planned use of Parcel A, explain how the land was hemmed in, or support the claimed route with photographs, maps or surveys. The Haggers’ papers also did not refute the affirmative defense that an implied easement existed over other adjacent land.
Because the Haggers never met their initial burden, the Vitelli side had no duty to come forward with evidence. The opinion does not separately discuss the fee award or the due process argument.
The Law
Florida has two kinds of way of necessity. Under section 704.01(1), a common law way of necessity is implied when land once held in common ownership is divided and one piece has no practicable access except over the other. Under section 704.01(2), a statutory way of necessity is available, regardless of common ownership, when land used or desired for a dwelling, agriculture, timber or stockraising is shut off or hemmed in by the lands, fencing or improvements of others, with no practicable route to the nearest practicable road. The owner may use the nearest practical route.
A statutory way of necessity is not free. Under section 704.04, the court sets the compensation the landlocked owner must pay, the easement takes effect when it is paid, and the court may award attorney’s fees against a party who unreasonably refuses to comply with section 704.01(2).
The case was decided under the summary judgment rule, rule 1.510. Current law (2026): effective May 1, 2021, Florida adopted the federal summary judgment standard. The moving party still has the initial burden, and a conclusory affidavit that only repeats the elements of a claim still will not carry it, so the basic lesson of this case remains good law.
Lessons
- If you seek a way of necessity, prove it with real evidence: a survey or map, photographs, and testimony about the planned use and why there is no other practicable route.
- Deal with any claim that you have another way out, including an implied easement over other neighboring land. Silence on an affirmative defense can sink a summary judgment.
- If your neighbor sues for access, a court cannot take an easement over your land on a bare recital of the statute.
- Fees in way-of-necessity cases turn on whether a party unreasonably refused to comply. Plead and prove it if you want fees.
- Losing your lawyer mid-case is dangerous. Move quickly for time to retain new counsel and put the reasons in the record.
Source: Vitelli v. Hagger, 268 So. 3d 246 (Fla. 5th DCA Apr. 12, 2019), No. 5D2018-2159; ACIS docket (reversed and remanded).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
🏗️ Court Gave Neighbors Access to Landlocked Property — Was Summary Judgment Proper? | 18-2159
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Easement Disputes in Florida: Utility, Access, and Prescriptive Easements
- No Written Easement, No Parking Access: Condo Loses Driveway Claim (Miami Beach Club v. RDR)
- Does a Quiet Title Judgment Wipe Out an Easement Nobody Pleaded? (Keys Island v. Crow)
Frequently Asked Questions
Can I get access to my landlocked property across my neighbor's land in Florida?
Often yes. Section 704.01(2) gives a statutory way of necessity over the nearest practical route when land used or desired for a home, farming, timber or livestock is hemmed in with no practicable route to a road. You must prove the elements and pay the neighbor compensation set by the court.
What is the difference between a common law and a statutory way of necessity?
A common law way of necessity is implied when land once owned by the same person was split and one part was left without access. A statutory way of necessity does not require common ownership, but it requires paying compensation under section 704.04.
Is a verified complaint enough to win summary judgment?
Only if it states real facts based on personal knowledge. In Vitelli v. Hagger, the Fifth District held a verified complaint that repeated the statutory words was too conclusory to support summary judgment granting an easement.
Do I have to pay attorney's fees if I refuse my landlocked neighbor access?
Only if the court finds you unreasonably refused to comply with the statute. Under section 704.04, fees may be awarded against a party who unreasonably refuses. Refusing access while you contest whether the requirements are met is not automatically unreasonable.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
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