In short: In Morris v. Garcia, ten Dolphin Estates lot owners in Monroe County each held an undivided 1/49th interest in a shared beach area and access canal, while Omar Garcia held the other 39/49ths, and the trial court ordered the parcel partitioned. The owners argued they had an implied easement that would survive the partition sale. On July 12, 2017, the Third District affirmed in a short per curiam opinion: they were co-owners, and one cannot hold an easement over one’s own property.
The Facts
The original developers conveyed to each of the ten residential lots in Dolphin Estates an undivided 1/49th interest in a parcel called the “Beach Area and Access Canal.” The remaining 39/49ths ended up with Omar Garcia, so Garcia and the lot owners were tenants in common.
In the partition litigation, the lot owners counterclaimed for a declaration that they held a non-exclusive perpetual easement over the parcel that would survive a partition sale. The trial court ordered partition and rejected the easement claim. An earlier appeal from that order (Nos. 3D15-2522 and 3D15-2346) was dismissed on February 10, 2016, because the order was not yet final; the court said the partition and easement issues were interrelated since the parcel’s sale value would depend on its title status.
After a final order, Celia Morris and other lot owners appealed again (Nos. 3D16-1517 and 3D16-1379, consolidated). The points below are what the lawyers argued, not findings by the court.
- The lot owners argued that the developer meant every lot to have access to the beach area and canal, that the parcel was zoned for commercial fishing, and that a buyer at the partition sale could shut them out entirely. Their counsel said the 1/49th interests would “turn into” an easement upon the sale.
- They relied on a letter from the seller’s lawyer that the trial court found accurately described the developers’ intent, and argued that partition was the only practical way to get a county permit that otherwise required all 49 owners to sign.
- Garcia’s counsel argued there was no easement in any deed or record, that the letter was written years after the conveyances, and that the owners could buy at the partition sale, negotiate an easement, or seek reformation if they had the evidence.
- The panel asked whether a co-owner can hold an easement over land it owns in common, and whether the owners could form an entity to bid at the sale.
The Decision
The Third District affirmed on July 12, 2017, in a short per curiam opinion. It agreed with the trial court that the ten lot owners did not hold a non-exclusive easement that would survive partition. Each owned an undivided 1/49th interest in the beach area and access canal, as a tenant in common with Garcia.
The court acknowledged that this “odd arrangement might not have reflected the grantors’ intent,” but it followed the recorded deeds. In a footnote it restated the rule that one cannot hold an easement in one’s own property, citing One Harbor Financial Ltd. Co. v. Hynes Properties, LLC, 884 So. 2d 1039 (Fla. 5th DCA 2004).
The lot owners keep their share of the partition sale proceeds, but the opinion gives them no right of access after the sale.
The Law
Chapter 64, Florida Statutes, governs partition. Under section 64.031, any joint tenant or tenant in common can sue co-owners for partition. If the land cannot be fairly divided, the court can order it sold and the proceeds split by ownership share.
An easement is a right to use someone else’s land. Because the right merges into ownership, a person cannot hold an easement over land he or she owns, including land owned in common with others.
An easement by implication must be inferred from the terms of a written instrument and the intent of the parties. Here the deeds conveyed fractional ownership, not an easement, and the court would not rewrite them.
Lessons
- Owning a fractional share of a common beach, canal or road is not the same as having a permanent right to use it. Any co-owner can usually force a partition sale.
- Developers who want lot owners to keep access to shared amenities should grant recorded easements or convey the land to an association, not split it into fractional interests.
- Buyers of waterfront lots should check how canal and boat-ramp access is actually held before closing.
- Owners facing partition of a shared amenity should consider pooling resources to bid at the sale, or negotiating an easement before the sale.
Source: Morris v. Garcia, Nos. 3D16-1517 & 3D16-1379 (Fla. 3d DCA July 12, 2017) (per curiam opinion, affirmed); ACIS docket; earlier appeal dismissed: Morris v. Garcia, Nos. 3D15-2522 & 3D15-2346 (Fla. 3d DCA Feb. 10, 2016).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Partition Sale of a Subdivision's Shared Beach and Canal: Does an Implied Easement Survive?
Go Deeper
- When Family Members Inherit Property Together and Can't Agree: Partition in Florida
- No Written Easement, No Parking Access: Condo Loses Driveway Claim (Miami Beach Club v. RDR)
- Easement Disputes in Florida: Utility, Access, and Prescriptive Easements
Frequently Asked Questions
Can a co-owner force the sale of shared property in Florida?
Generally yes. Under section 64.031, a joint tenant or tenant in common can sue for partition, and if the property cannot be fairly divided the court can order it sold. In Morris v. Garcia, a shared beach area and canal held 39/49ths by one owner and 1/49th by each of ten lot owners was ordered partitioned.
Do I keep access to a shared canal after a partition sale?
Not unless you have a separate right, such as a recorded easement. In Morris, the lot owners owned fractional shares, and the Third District held they had no easement that would survive the sale.
Can you have an easement over property you co-own?
No. Florida follows the rule that one cannot hold an easement in one’s own property. The Third District applied that rule to owners who held undivided interests as tenants in common.
What if the developer intended to give lot owners access?
Intent alone may not be enough when the recorded deeds say something else. The Morris court acknowledged the arrangement might not reflect the grantors’ intent, but it followed the deeds. A claim to reform a deed requires proof of the parties’ actual agreement.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
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