waters quinn said:
Aaahhh. Details, details. Details are pesky little things, aren't they? Well, it's a 24 foot wide, pedestrian and emergency vehicle access easement -- originally platted for fire trucks to barrell through when/if a 747 fell from the sky and they needed emergency access one day. . ..
The
McCorquodale court, in
McCorquodale v. Keyton, 63 So. 2d 906 (Fla. 1953), held that the recorded plat even bound
the creator of the plat himself to the plat as it was recorded. There are other newer cases that have the same result.
waters quinn said:
...but then the builder either forgot or got greedy and put 3 houses up instead, because the 24 foot easement has 6 palm trees and two driveways (not ours) with parked cars smack in the middle of it, in addition to the philodendrons that they keep hacking. So emergency or not, it won't be our philodendrons impeding access. It will be 6 trees and 4 parked cars. Anyway, the pest neighbor kept calling the police,fire chief, and city hall to notify them of the EVA "violation" and they basically told her to get a life -- that there's no way they would ever require this access to be an EVA, hence her fixation on the pedestrian part of the easement.
The city, and those others mentioned, not being a court, can offer their opinion freely, and obviously enforce what they choose to enforce. The court however is bound to follow and honor and uphold the law. The law is clear in Florida, that the recorded instrument is to be honored in its entirety, unless and until dissolved or ammended by agreement of both the dominant and servient owners. The palm trees are actual violations of the easement that the court will find. The parked cars, inhibiting EVA access will also find themselves violating the easement...as it is recorded. Leaving the court no other choice. Oddly enough, you are complaining of the clearing of the easement when in fact in current Florida law, the dominant owner is violating the recorded instrument (where allowing the palm trees to remain within the easement). See,
H & F Land v. Panama City-Bay County Airport and Industrial District, 736 So. 2d 1167, 1170 (Fla. 1999), where the muniments of title (the WORDS themselves...appearing ON THE FACE of the document itself, within the four corners of the instrument, are exclusive and controlling the issue).
waters quinn said:
So where's the part of easement law that says we have to accept the liability of this extremely high foot traffic?
You received and accepted the deed.
waters quinn said:
We clearly bought the property on the condition that we would have privacy (the philodendrons & rocks installed by the builder) and that it would be "maintained" as it was given to us. . . We don't agree to these sudden improvements. They don't improve anything for us. We own a small portion of (about 6 feet) of this easement -- yet it is the sole portion that the pest has fixated on--the rest remains closed/untouched. What is the benefit to us of the mutilated foliage and daily parade of peeping toms?
See,
Entzminger, above.
waters quinn said:
What if the pest woke up one day and decided that the easement needed to be a cement-walled footpath encased in 30-foot-high concrete slabs?
In Florida, the wall can be 3,000 feet (or more). and the concrete slab, 30,000 feet (or more). All within the recorded easement boundaries. Subject to local height restrictions of course. Accomplished by the dominant owner. Just so long as the servient owner's access and use is not inhibited.
The "pest" as dominant owner? That is where your attorney needs to focus.
waters quinn said:
Doesn't our deed give us any right of notification or refusal of these "improvements"?
Johnson,(above) shows "in the chain of title", that you are on notice of the recorded easement. Your actual deed showing that recorded easement, is indestructable notice. "Refusal of those 'improvements'", is not an option you have available. Objecting to them is another matter. See Section 704.01(2) in current Florida Statutes.
To contrast this issue, the servient owner in Florida law, is barred and estopped to maintain or improve the easement for the dominant owner's benefit. Despite how much the servient owner desires to do so.
waters quinn said:
Whose definition of "improvement" takes precedence?
It is hard to defeat the dominant owner's definition.
waters quinn said:
As I said in the beginning, why would any servient party in their right mind agree to such a ludicrous arrangement?
This may hurt just a bit, but "ludicrous" is the subjective term here in the eyes of the law and of the court.
waters quinn said:
The fact is, no one can cite any definitive Florida law or case such as this -- even our attorney was left scratching his head.
There is abundant case authority precisely as in your situation. For example, if you read
Morrill,(indicated previously), you will find that it is the dominant owner's same duty and obligation to IMPROVE this same easement.
Morrill, is not the only case of its kind.
The best example of just how well covered this topic is, for the benefit of your head-scratching attorney, may be found to be the case of Mr. and Mrs. Parlato. Beginning in 1991 or 1992, multiple appeals, by multiple interested parties have been taken. Homeowners Association, easement, improvements, duties, responsibilities, rights....all are discussed in detail, many times.
First, see,
Parlato v. Secret Oaks Owners Association, 689 So. 2d 320 (Fla. 5th DCA 1997);
Secret Oaks Owner’s Association v. Department of Environmental Protection, et al, ___ So. 2d ___ ,
rehearing granted, 704 So. 2d 702 (Fla. 5th DCA 1998), (the Parlatos were interveners in the case below, on this one).
Parlato v. Secret Oaks Owners Association, et al, 793 So. 2d 1158 (Fla. 1st DCA 2001).
waters quinn said:
Thanks for your advice. I suppose we will put up a fence, eventually. Seems a shame, though.
A shame perhaps, conditioned by the "good old days" of the previous nine years as the way things were. In law, change here as described is permissable. Once in court, change will be mandated...the removal of the palm trees for example...will be ordered of the court.
There is one point here that may be of help. Florida also has Section 725 in its Florida Statutes, the Statute of Frauds. Under this section, the HOA, can be held to "specific performance" of the terms of a "contract" to keep and maintain this easement in "top-notch condition". "Top-notch condition", being the subjective term again, may be seen by the court as superior than just "maintenence". If this "top-notch condition" is contained only in a sales brochure, the statute of frauds will not apply. It must be in, or referenced in and to a contract, in order to be enforced. Perhaps another avenue to approach?
One last thing. As the servient land here, is YOUR lot within the HOA. The HOA attorney is your legal combatant, your lititgious enemy. You would certainly be his litigious enemy. The HOA attorney represents the HOA's interests (of which your are indeed a member). It hurts, to be sure, but the HOA's interests are the "pack of 8-year olds...the walkers...the skaters...and the golf carts and their drivers", not just YOUR exclusive, individual gripe or legal interest. In all likelihood, you can set an appointment with him and discuss at length, any OTHER easement within the HOA. Just not the easement over and across and recorded on YOUR lot. Hope that helps.
Good luck.