LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Gypsies, Tramps and Thieves - Maybe We'll Find Out if Section 95.361 is Constitutional

In Charity et al v. Sarasota County, the 2d DCA reversed summary judgment in favor of the County in a case that involved where the owners of property seperated from a canal by a street that was established by common law dedication have riparian rights to the street. The basic facts (and similar cases have been litigated way more frequently than you might believe) is that you have lots, a street, and then lands on the other side of the street (very thin strip) and then a canal. I won't both to characterize the original plats because all the players in this are home town to me, but let's just say that based on practice and history, the landowners had good reason to believe that the lands between the road and the seawall were theirs, but the land records can be characterized as ambiguous.

The court had ruled based on (the court found) the misapplication of an earlier case (Kreiger v. Town of Longboat Key) involving the extent of rights in lands where property that is subject to a plat is conveyed by metes and bounds. The court in that case found that the later sale of the property by metes and bounds excluded rights that were associated with the land under a plat; it found that the later sale intentionally excluded the rights and appurtant lands under the plat.

Here, the court found that the landowners would not have automatically lost their rights to the lands under the conveyances, and that the conveyances referenced the plats (as well as metes and bounds extensions). I think what you have in some of the cases are deeds that have lines like "Lot 9 and the S 20 feet of lot 10 less lands for easements as recorded at Book x Page y. "

The circuit court bought the argument that this kind of sale took them out of the ownership of the lands under the rights of way and the riparian rights to the other side (here, the rule is that if there are no landowner/lotowners on the far side of the street to own to the 1/2 way point, the single adjacent owner gets it all). The 2d DCA overturned it.

The County had also argued, but the circuit court did not reach and the 2d DCA expressly did not consider, that it had total ownership of the road under the "dedication statute," 95.361. That statute provides that in cases like this where its not clear who opened the road, if the county maintains it for 7 years, there is a presumption of dedication for the width of the maintained right of way, and that dedication would include the entire fee. The statute provided a limited window to challenge the operation of the statute.

So the County's argument is that it owns the road by operation of the statute and that this breaks the ownership of the strip of land between the road and the seawall.

This sets up a potential for a major confrontation over the validity of the statute. The statute was created to safeguard public rights to government maintained roads. But by granting full title, it actually takes land without compensation. Moreover, by taking title to roads subject to common law dedication (which granted right of way to the government, but maintained ownership in the adjoining lots or the grantor), this would disturb existing expectations to a huge extent.

As applied in cases where the government opened a road years ago and has maintained it, it creates a useful way to establish that a road is in fact public. In cases where the right of way already has been dedicated, it is not much more than outright theft of the fee, and serves no purpose other than to extinguish the residual rights of the adjoining landowners.

On remand, the circuit court's resolution of this issue may create a major confrontation over whether the statute (1) applies to roads that were dedictated; (2) is an unconstitutional taking under the Florida constitution; or (3) is an unconstitutional taking under the US constitution.

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