If you’re looking at waterfront land in Florida then you should know how to determine which properties ‘enjoy’ riparian rights. Riparian rights are statutory rights. If your Broker doesn’t know then it’s time for a new one. Call me, Chris Ryder, at 561.626.8550

Florida Statute 253.141 definition in part reads: “(1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law…” and it goes on to EXCLUDE certain lands from the definition of navigable waters: “(2) Navigable waters in this state shall not be held to extend to any permanent or transient waters in the form of so-called lakes, ponds, swamps or overflowed lands, lying over and upon areas which have heretofore been conveyed to private individuals by the United States or by the state without reservation of public rights in and to said waters.” Overflowed lands would be those where someone made seawall (or not), and then dug out what was once dry land, and water came in and covered that historically dry land. Or even if there is no seawall but it was similarly dredged then those owners do NOT enjoy statutory riparian rights.

So, how does one tell if the land if the land has riparian rights?

If the land below the water was covered by navigable water when the State of Florida was created in 1845 then that land (and control) of the water column is owned by the State of Florida (A/K/A Sovereign Submerged Lands). The abutters to these submerged lands have riparian rights.

CLICK HERE to read the University of Florida Levin College of Law memorandum.

IF you have a dock permit then READ THIS blog post for the a short cut to the method outlined below.

OK, so how do I know if the water in back of the house I want to buy was there, and was considered navigable, in 1845 when Florida was granted statehood and/or is owned by the state? Well, there’s a government agency called the Bureau of Survey and Mapping that keeps track of these things and they have performed a survey (as in land surveyors) of state owned land. In the age of the internet you can look up this information on the Florida Board of Trustees Land Document System (BTLDS) website. One of the many layers on this map is the Public Lands Survey System. A map of the land owned by the State of Florida. In MOST cases if there is public land shown on this map below the water adjacent to a property then the uplands parcel enjoys riparian rights. Check to make sure the property lines intersecting the water in the legal description extends down to the historic mean high-water or “meander” line for tidally influenced waterbodies or to the ordinary high-water mark for non-tidally water bodies.

An interesting note here is the line showing the intracoastal. In many places the ICW was placed over historically navigable water (owned by the state) and in others it connected two bodies of water over land that was historically dry. In northern Palm Beach County this was (is) an easement granted 06/08/1942 being 500 feet wide to the federal government. I’m thinking, digging and typing on this and I think we need a NEW POST on the history ICW of this land.

CLICK HERE to read all about how riparian rights are apportioned to the uplands. For MOST they will extend perpendicular to the sea wall out into the waterway to the line of navigation which is defined as the nearer of a) the marked channel, b) 4′ of water at mean low tide or c) 25% of the canal width from sea wall to the sea wall on the opposite side of the canal.

The next question is, if the land below the water is NOT owned by the state then who does own the land below the water column and what rights, if any, extend to the upland abutters? Since the uplands property owner does not own the land below the canal then they only have rights to use that land (for pilings and such to support a dock) and the water column over it (to actually float a boat on) to the extent that the predecessor in title (of the submerged lands) granted it to them.

Because of this a few more items to look for (as if there are not enough already) is something on the plat, or accompanying it in the public record, for the owner of one uplands parcel to traverse (by boat) over the submerged lands (assuming non riparian) of others between their parcel and a waterway which is over state owned lands where the general public enjoys “rights of navigation”. AND, something that spells out who is going to pay for maintenance dredging of this man made canal because the state most certainly is NOT.

In North Palm Beach for instance, most BUT NOT ALL, the canals were man made and were dedicated (given) to the Village when the land was platted much like a public street. Thus, the Village of North Palm Beach owns most (but not all) the land below the canals in the Village. A quick way to find out who owns that land is to look it up the uplands parcel on the the property appraisers site and click on the water and see what the legal description is. Be careful though as the ones in North Palm do not bring up a resulting Parcel ID. In those locations, one must lookup the legal description of an uplands parcel, then look at the recorded plat it’s on, then look for agreements recorded with that plat spelling out the use and maintenance of the canal. In places like Admirals Cove and Jonathans Landing the property owners association owns the bottom and the recorded docs spell out the answers to the questions noted above.

For stand alone docks like those in Mariners Cove which have a parcel ID and you can get title insurance on it and as such they may be financed.

Communities like Twelve Oaks and Turtle Creek East have marina’s on a submerged land lease from the state because the uplands DO enjoy riparian rights so that bottomage is owned by the state. Lake Worth (the body of water) and the Loxahatchee River were navigable water when Florida was created. Docks on state owned bottomage land like those at Twelve Oaks are NOT eligible for title insurance as they are a lease. The association does not own the land, they just have a lease and a license to build a dock on it for use of water column.

What most private parcel owners care about is how big and how many docks may I have?

I CAN NOT STRESS THIS ENOUGH. DO NOT RELY ON PAPA OR SOME STATE WEB SITE, GET A TITLE SEARCH DONE ON THE WATER YOU ABUT OR HIRE A COMPETANT REAL ESTAE LAWYER. You are about to spend a ton of money for a waterfront property. You want to be sure and this is the ONLY way.

What to look for when buying a condominium in Florida that requires financing?

There are all kinds of loan products out there and the underwriting rules vary considerably but generally one wants to use a ‘conforming’ loan product as these get the best loan rates. Conforming loans are Fannie/Freddie loans and when they talk about loan approval they use the term ‘warrantable’. Typically, a condo is considered warrantable if:

• No single entity owns more than 10% of the units in a project, including the developer
• At least 51% of the units are owner-occupied
• Fewer than 15% of the units are in arrears with their association dues
• The homeowners association (HOA) is not named in any lawsuits
• Commercial space accounts for 25 percent or less of the total building square footage
• The Association transfers AT LEAST 10% of its annual budget into a reserves account. So if the association collects 100k a year from its members then it must set aside 10k of that into a reserve account.

The last one is typically the problem. Many associations do not do this even though 10% is a modest amount. $50 out of a $400 per month maintenance fee would be 12.5%

Every now and then I’m showing or selling a house in the historic districts of West Palm Beach and the walls are not Concrete Block. Nor are the walls wood framed. They’re something different. They look like the color of unglazed “Mexican” floor tiles or clay roof tiles. What are these?

These homes were constructed with structural terra cotta blocks used for the exterior walls and sometimes interior load bearing walls. Some Realtors or property owners will refer to them as hollow structural tile, hollow tile block, hollow building tile, structural clay tile and structural clay load-bearing wall tile. The Palm Beach County Property Appraiser notes it as ‘ADOBE/HOLLOW CLAY BLK‘ and in the local MLS it is simply noted as Hollow Tile.

What is the history of Terra Cotta Wall Construction? In the 1920’s through about 1950 in Florida some local houses were constructed with what was considered to be a superior building material to wood frame walls. These were hollow building blocks (similar to masonry block) but made from terra cotta. Yes, that’s terra cotta like the old school pots for plants. These were stacked and mortared in place to create exterior walls and sometimes interior walls (typically the bearing wall) which were then covered with stucco on the exterior, wood lath and plaster on the interior. Although they are not as ‘strong’ as a Concrete Masonry Unit (CMU as in CBS) they are certainly superior to wood and were more expensive at the time of construction which is why they are found in more affluent older communities. They did not have steel reinforcing which is why they do not perform as well as modern concrete masonry in things like earthquakes but in Florida who cares. In a wind storm (hurricane) they would be superior to wood fame but inferior to later era concrete block (CBS) houses. In every day life they would be better at resisting termites, and don’t rot or retain moisture like wood frame. BUT fastening things like hurricane panels to them can be difficult as they tend to ‘blow out’ the back of the clay tile when hammer drilling in the anchors.

Bottom line – Clay structural tiles are better than wood frame but not as good as concrete block and stucco (CBS).

CLICK HERE to read my blog post about the definitions of some other items you may see in the Property Appraisers page.

Question: When we were not in residence, a pipe under the concrete slab in our first floor condominium unit needed repair. This pipe supplies water to our unit and to the one adjacent to ours, serving a total of 24 units. Approximately two inches of water was found in our unit. Plumbing and concrete contractors were called in by our management company and repairs were made. Jack hammering the concrete, removing 3-4 feet of sand, finding and fixing the pipe leaks in multiple places, returning the sand, and sealing the slab with new concrete were all required. New baseboard molding was installed and painted, and a small piece of drywall was installed where necessary.

These services were paid for by our condo association. A “dry-out” company was hired by our management company to remove water and deal with wet carpeting and wet floors so that the above mentioned repairs could be done. Fans and a dehumidifier were installed and remained for 5 days.

Now, here lies our problem. This incident occurred in June, and we have just this past week received a bill from our management company for “dry-out” services in the amount of $5,700. We have been told that this payment is our responsibility and NOT the condo association.

Back in June we filed a claim with our homeowner’s insurance company and have already accepted payment and have had new carpeting and flooring installed. We do not understand how some of the repairs are the condo association’s responsibility, but others are not. Your input would be greatly appreciated. – W.W., Stuart

Answer: It is a matter of negligence. The Association has an obligation to maintain, repair and replace pipes that serve the units and the common elements. If the Association had no reason to believe the pipe under your unit was going to break and cause water damage, then the Association was not negligent in failing to maintain the pipe. As such, the water break and resulting flood was the result of an unforeseeable accident. In such cases the Association must make the repair and pay for the items that the Association insures for accidents (called an insurable loss or casualty).

The Association’s casualty insurance does not cover personal items in your unit or carpeting. So, when the accident occurred, you are responsible for the items that the Association does not insure, such as drying out your carpet and personal items. That is what your homeowners insurance policy covers. Alternatively, if the Association knew or should have known that the pipe was about to break and cause damage and did not take timely action to prevent it, then the Association could be deemed negligent, and while you would still have to pay for your share of the dry-out costs, you might be able to recover the cost from the Association.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice.

The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

© 2019 Journal Media Group, Richard D. DeBoest

I updated this post for the new version of the FAR BAR As-Is and the lesser used FAR contract.

Questions? Open a chat below or just give a call to the office at 561.626.8550.

Counting dates: Calendar days, business days, Realtor daze

Oct. 30 2021 UPDATE:  As of November 1, 2021 there is a new version (6) of the FAR BAR As-Is Contract,  In this post I go over all the changes to the new Contract.  And, in this post I show how to count days in this NEW version of the FAR BAR As-Is.

THE INFORMATION BELOW IS NO LONGER ACCURATE AS OF 1 NOVEMBER 2021.

By Meredith Caruso

Feb. 19, 2018  Confused about how to count time under the contract forms? No Florida law governs computation of time in all contracts, and it’s important to realize that contracts can calculate time differently. Therefore, reading the contract carefully to determine time calculations is the key to avoiding missed deadlines and potential liability. Let’s review the calculation of time in the Florida Realtors/Florida Bar contracts. Both the standard version and the “AS IS” version are the same. The effective date of these contracts is a baseline date for other calculations – the first step in figuring out many of the deadlines in both forms. Consequently, it should go without saying that you must know the effective date in order to correctly calculate those contract time periods. In the Florida Realtors/Florida Bar contracts, Paragraph 3(b) defines the effective date as the date the last party signs or initials and delivers the offer or final counteroffer. Note that there is an element of delivery, so the effective date isn’t always the date the last party signs. In other words, if the last party signs the offer or final counteroffer on a Tuesday, but the contract doesn’t get delivered back to the other side until Wednesday, the effective date is Wednesday. Standard F: Except for the effective date and time for acceptance, calendar days are to be used to compute time periods, and any time periods or dates ending or occurring on a weekend or national holiday are extended to 5 p.m. of the next business day. An example: If the effective date of the contract is Wednesday, Nov. 21, 2018, and the time period for making the deposit is “within 3 days after the Effective Date,” the deposit must be made no later than 5 p.m. on Monday, Nov. 26, 2018. Here’s why:

• Wednesday, Nov. 21: Not counted as the language states the time for making the deposit begins after the Effective Date
• Thursday, Nov. 22: Day 1 (It counts even though it’s Thanksgiving, a national legal holiday; note that holidays only affect time periods if the deadline ends on the holiday)
• Friday, Nov. 23: Day 2
• Saturday, Nov. 24: While this is technically Day 3, the deposit isn’t due as the time period ended on a weekend, which means the deadline is extended to 5 p.m. of the following business day
• Sunday, Nov. 25: The deposit still isn’t due because Sunday is not a business day
• Monday, Nov. 26: The deposit is due by 5 p.m.

Again, it’s crucial to recognize that contracts may be calculated differently. For example, the Florida Realtors Contract for Residential Sale and Purchase (CRSP) uses business days to calculate time periods. The Commercial Contract uses calendar days to calculate time periods – but not for time periods of 5 days or less. As you can see, there can be many different ways time is calculated! The important thing is to be aware of how time is computed in each of your deals and don’t think all contracts are alike. Taking extra time to double check the time computation section of the contract you’re using can save a lot of headaches later. Meredith Caruso is Manager of Member Legal Communications for Florida Realtors © 2018 Florida Realtors®