Jupiter Florida Real Estate Broker

OK, so I’m not sure how many people will read this post but about a month ago I did a blog posting on the Effects of the King Tides on Palm Beach Real Estate. When I wrote this post I could see that the actual recorded water level at high tides at the Lake Worth Pier was over one foot HIGHER than what NOAA predicted. WHY? This is one of the main tide gauges used by NOAA to record tide data. Other tide data in the area at places like the the PGA Bridge or even the Port of Palm Beach is based upon the Lake Worth Pier data with a numerical modifier applied. How could they be off by over a full foot?

I just found the answer in THIS ARTICLE which quotes a Brian McNoldy, senior research associate at the University of Miami’s Rosenstiel School of Marine and Atmospheric Research, who notes that: “NOAA’s forecasts on king tides rarely line up with the actual measured high tides. The most recent king tide came in 16 inches higher than NOAA predicted it would. The reasons are a combination of warmer waters at this time of the year, however the The last two king tides also coincided with tropical systems that, although far away from Florida’s coast, played a role in the height of the tides. Hurricane Lorenzo, which became a powerful Category 5 storm thousands of miles away, was roaring through the ocean at the start of the month. For the recent king tide, Subtropical Storm Melissa stomped around New England.”

Even more fascinating as noted in this article is that water has “backed up” in the Gulf of Mexico.

Undate: As of August 2024 there is a ne veriosn of these which are substantially the same as the November 2021 versions EXCEPT they now include language required by the NAR settlement.

UPDATE: As of November 1 2021 the new version (6) of the FAR BAR As-IS is in use.

In Florida there are 2 basic “types” of a contract used to purchase real estate and 2 different version of each of these. There is the Florida Association of Realtors (FAR) forms and the Florida Association of Realtors/Florida Bar Association (FAR/BAR) forms. In these forms one can use the As-Is or non As-Is…what I will call methodology. In an As-Is style contract the Buyer agrees to purchase the property in the As-IS condition after an agreed upon inspection period. In a standard (non As-Is) contract the the Buyer has an inspection and provides copies of report showing item to be repaired by the Seller up to threshold, as in 1.5% of the purchase price for general repairs, 1.5% for to address wood destroying organisms and 1.5% for permit issues.

This As-Is Contract for Residential Sale and Purchase (FAR/BAR “As-Is”) is the most widely used Contract:

The Contract for Residential Sale and Purchase (CRSP)

As-Is rider to the CRSP Contract (Optional)

Contract for Residential Sale and Purchase (FAR/BAR)

Paradise Port is the neighborhood in unincorporated Palm Beach Gardens on the north side of Donald Ross Rd to the west of the intracoastal with waterfront property on Paradise Point Rd, Harbor Lane, Port Circle and Leeward Way.

First, let’s look at the easy one. The houses on Paradise Point Rd. Note that this is NOT a public road and thus public funds can not be expended on the maintenance of it for things like pavement and drainage. The pavement runs over an easement through the lots on this road for 15′ either side of the centerline of the ‘road’. That’s the bad news. The good news is that the waterfront on both sides of the road is riparian. The east side is the intracoastal which is owned by the State of Florida and the federal government has an easement over it. The lots on the west side abut the historic Frenchman’s Creek which the state of Florida owns the bottomage of. Thus, lots on both sides of the road enjoy statutory riparian rights to use the water.

The lots on the east side of Harbor Lane such as 14208 Harbor Lane are also bordering on the historic Frenchman’s Creek and so these too enjoy statutory riparian rights.

The lots on the west side of Harbor Lane as well as those on Port Circle and most on Leeward border upon a man made canal or a/k/a “over flowed lands”.

Now, I would say there’s a problem with the use of the water adjacent to most of these parcels. The language of the recorded plat is silent on who owns the canals. They are not dedicated via language on the plat, as most are in places like North Palm Beach The plat dedicates only the roads and easements shown on it to the perpetual use of the public.

BUT the easement(s) for things like drainage shown on the plat does NOT include the full dimensions of the canals shown there on. It does not address the issue of docks or pilings on this submerged land, floating a boat on it, passing over it to get out to the public waterway nor any dredging of it.

And, just like the folks who thought they lived on the “Earman River” in North Palm Beach found out, if Deitz Enterprises Inc never sold, dedicated or had it taken away by a government agency then the land shown on the plat, such as that which is NOT shown as a drainage easement, is still owned by that entity. As early as a few years ago Dietz was giving explicit easements to the property owners on Paradise Point Road for that roadway to get back and forth to their houses. These folks are still around. Heads Up!

BTW, there are a few lots at the very end of, and those on the north side of, Leeward that also enjoy riparian rights.

Continuing down Prosperity Farms Road we come to another scenario. Houses on Inshore and South Shore Drive in Palm Beach Gardens. These houses are located on what is referred to as an “unrecorded plat“

In this location when the land was subdivided there must have been some sort of an issue, I suspect with the road width, so a plat could not be recorded. The issue is that the canals are not clearly identified.

If you look at the legal description of these lots it’s NOT lot X shown on plat as recorded in Book XXX and Page YYY. And when you look at these houses on PAPA you can see that the lots go right to the centerline of the canal. This is a problem. One can create overflowed lands in Florida BUT how does one control the overflowed lands of the neighbor between you and the ‘Navigable Water’ you need to get to with your boat? Who will dredge it? When will it be dredged? Who will pay for it to be dredged? Can I cross over the submerged lands of my neighbor to get me and my boat out to ‘Navigable’ water?

Fortunatly for folks living in this community some of thee questions are answered in an easment recorded in Official Record Book 96 Page 490.

Continuing to look at the various types of waterfront around how about the Maheu Estates plats off of Prosperity farms Rd on streets like Edgewater, Azure and Bay in Palm Beach Gardens?

The first plat, Maheu Estates for the lots on Edgewater Drive shows a “Canal Easement” and the grantor goes on to specify:

Ingress & egress of boats. That’s the right to move a boat over this submerged land. Is it for the general public or only the abutters? What about the right to place piling (build upon) the bottomage for a dock? How about dredging and maintenance? Lots of questions on this one IMO.

The Maheu Estates Addition Plat is for houses on Azure & Bay uses similar language but notes the waterways on that plat as “Lagoons”. That plat shows a small sliver of “Pearl” lagoon on the north side of Bay Circle lots and then a canal shown on another plat (26/81) on the north side of this sliver canal.

That plat (the plat 26/81 for cabana colony actually) shows a “Canal” and notes that:

“Public Use” so we don’t have to worry about an access agreement but a dedication is something else. Roads and such are dedicated to the government so long as they meet certain standards, as they were in North Palm Beach, and the municipality accepted the dedication. No idea if the county ever did this. Did they ever accept this gift of submerged lands to maintain in perpetuity? A dedication also implies a public right to use this land. It’s like a street BUT one can not build on a street so why would one be able to build on a dedicated canal?

Maheu estates Addition 2 for houses on Carib and Driftwood shows Lagoos and a Creek and that plat notesz:

So, here we are again. Ingress and egress is OK but how about docks and dredging?

Also, the houses on the south side of Carib ONLY have frontage on the public canal (26/81) . The other side of the waterway the grantor clearly shows a small piece of land below the water (“Pearl Lagoon”) with a different description and they would not have done that without good reason. That reason is that this was need to be able to build a dock.

One thing saves them though. The state is shown as the owner of the bottomage of the canals in this area. Seems odd to me but OK. Thus, most of these properties would enjoy Riparian rights.

I’ve been exploring the various types on canals around the Jupiter and Palm Beach gardens area and we will now look at man made canals (a/k/a over flowed lands) where the waterway is owned by an association.

These would be paces like Prosperity Bay Village. The plat for this community shows canals from the properties in the association out to the ICW where the general public has the right to be. And on that plat the grantor specifies:

This is OK on the surface (pun intended) but lacks the answer to a vital question: Who will pay fo the dredging and at what point (depth) does it get done. If all the board members live on the deep lots closest to the ICW then the back lots may have a tough time getting all lots to pay for a dredging project that is disproportionally beneficial.