The benefit of living on the edge was apparent, so to say, in Pelican Creek Homeowners, LLC v. Pulverenti, Case No.5D16-4046 (Fla. 5th DCA February 2, 2018).
In this case, the edge was platted property. Specifically the issues involved: Who owns real property dedicated in a plat to a county for street and easement purposes after the county relinquishes its dedicated rights? Are there special considerations when the dedicated area is just inside a plat’s boundary?
The HOA and some owners of lots within a plat sued to require removal of the Pulverentis’ dock and boathouse allegedly constructed on the Plaintiff owners’ property. The trial court facing dueling motions for summary judgment denied the Plaintiff owners’ motion, but granted the Pulverentis’ motion.
In brief review of the facts, a plat created in 1960 included Plaintiff owners’ lots, and dedicated to Brevard County a ten-foot drainage easement area along the north side of a canal on the plat’s “margin” which was just inside the plat’s boundary. In 1980, the County relinquished its right to the easement area. The dock and boathouse were constructed on this easement area in 2006. The Pulverentis apparently own property adjoining, but not within, the northern boundary of the plat.
Initially the appellate court differentiated between dedications created by statute and dedications by common law. The Court’s explanation is summarized as:
- A common law dedication subjects property to a use easement; but, does not divest the owner of title.
- A statutory dedication pursuant to §95.361 Fla. Stat. (2016) may vest title in the named political subdivision. Filing a map that refers to the dedication provides “prima facie evidence” of a statutory dedication and transfer of title to the political subdivision.
Here, the 1960 plat dedication does not refer to the statute or an intent to transfer; thus, there was no statutory dedication and title remained in the dedicator at the time of the dedication.
Pursuant to §177.085 Fla. Stat. (2016), codifying the common law rule, the transfer of property subject to a plat with a reservation for streets and easements creates a presumption that the abutting lot owners own to the center of the road or easement. Though the statute allows an exception when the dedicator files suit to reserve title, the dedicator did not timely do so.
When the dedicated area is not located between two lots, such as when the dedication is to an area within and bordering the edge of a plat, the “margin,” common sense dictates that the one adjoining lot within the plat retains ownership of the dedicated area, not just to the centerline.
Why? The Court recognized that a line must be drawn to avoid the impossibility of a parcel of land not having an owner upon relinquishment of the dedication. Two bases for their holding appear to be:
· A lot outside the plat should not enjoy half of the easement area because the lot outside the plat did not share a common grantor.
· A lot within the plat would enjoy the greatest benefit because the area adjoins the lots and would provide, in this instance, drainage for future maintenance.
Here because the Plaintiff owners’ lots are the closest to the easement area which is on the edge of a plat, the owners can be said to be the only property owners that contributed to the creation of the easement area. Also, when the County vacated the dedication, public policy supports the Plaintiff owners owning what appears to be an extension of their lots into the easement area, the easement area not being carved from the Pulverentis’ lot. As a result, the trial court’s summary judgment was reversed and remanded. Note that the Court’s textural description of the property indicates that a canal separates the Plaintiffs’ lots and the easement area, a distance that did not apparently impact the Court’s reasoning, but which might have an impact under other circumstances.
This decision is of interest to the practitioner as it contains a thorough explanation of the difference between common law and statutory dedications as well as differentiating tracts that bound a plat.
One question raised by the opinion’s choice of words is the difference between “revoking,” “abandoning” or “vacating” a dedication? The opinion utilizes these terms apparently interchangeably.
As is increasingly common, would the result have changed if the property adjoining the plat was owned by a common grantor/dedicator of the first plat? Developers of planned communities frequently plat one portion at a time, and adjoining plats will be created by a common grantor. As the opinion appears in part to rest upon the assumption that there is not a common grantor, the result could change under this scenario.
Though perhaps not at issue in this matter, but occurring in other developments are irregularly drawn lots, not perfect rectangles. When a lot line meets a dedicated area at a non-perpendicular angle, how should a lot’s property line extend in that dedicated area.
Further, while it would have been helpful, it apparently was not necessary for the Court to reach the question of what is the effect of a plat’s purported dedication to a non-public, private entity, such as a homeowners’ association.
Michael J. Gelfand
Real Property, Probate and Trust Law Section of The Florida Bar
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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2018 Michael J. Gelfand
Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys