Landowner Has Rights In Alluvium as it Becomes Part of the Property

Posted on December 16, 2016

The case Accardi v. Regions Bank, 201 So. 3d 743, 745 (Fla. 4th DCA 2016) begins in 1996 when Appellant obtained a piece of oceanfront property described in the warranty deed as “LOT 16, BLOCK 10 HILLSBORO SHORES SECTION ‘A’.”  One year later when Appellant married, he transferred the property to himself and his wife using the same description on the original deed. Overtime, alluvium or deposits of clay, sand and gravel left by flowing water built up new land on the oceanfront side of the property.

In 2002, Appellant and his wife obtained a judgment quieting title to the new property made by alluvium.  The Judge found that “[t]he land area of [Appellant’s] subdivision lot has been extended in an easterly (seaward) direction as the result of the gradual, natural, and imperceptible buildup of additional lands adjacent to and east of the easterly lot line….”.  Therefore, the alluvium belonged to Appellant and his wife in fee simple and “in that said lands were added to their subdivision lot by the natural process of accretion and/or reliction”.  The Court additionally noted that “under the deed by which they took title” to the original land and that the common law principles governing the ownership of lands adjacent to waterways would “continue to apply to the property and to the adjacent Atlantic Ocean and its navigable waters.”

When Appellant and his wife divorced, she quitclaimed her interest in the property to Appellant. In her quitclaim she used the property description in the original deed and did not mention the alluvium.

In 2008, Appellant refinanced his mortgage in favor of the bank and took out a line of credit for $2,250,000. The new mortgage described the property using the same description as the original deed with no mention of the alluvium.

When Appellant defaulted on the loan, the bank sought to recover, foreclose on the mortgage, and reform the mortgage to include the alluvium as part of the secured property. Appellant counterclaimed for declaratory judgment and asked the court to resolve the question of whether the alluvium was part of the encumbered property or a separate parcel not encumbered by the mortgage.

Consequently, the bank moved for summary judgment. The Court granted the banks motion on the grounds that the alluvium was automatically added to the original property as it formed.  Since the alluvium was not expressly granted in any succeeding grants, the court found the alluvium to be included in the mortgage. The court heard the foreclosure action and then proceeded to enter into a final judgment that granted the bank’s foreclosure and reformed the banks mortgage to include the alluvium.

“Under both the Florida Constitution and the common law, the State holds the lands seaward of the [Mean High Water Line] including the beaches between the mean high and low water lines, in trust for the public for the purposes of bathing, fishing, and navigation.” “Private upland owners hold the bathing, fishing, and navigation rights described above in common with the public. In fact, upland owners have no rights in navigable waters and sovereignty lands that are superior to other members of the public in regard to bathing, fishing, and navigation.” Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1109 (Fla.2008).

“However, upland owners hold several special or exclusive common law littoral rights: (1) the right to have access to the water; (2) the right to reasonably use the water; (3) the right to accretion and reliction; and (4) the right to the unobstructed view of the water.” Id. (emphasis added). “Though subject to regulation, these littoral rights are private property rights that cannot be taken from upland owners without just compensation.” Id.

In Stop the Beach Renourishment, the United States Supreme Court held that “in Florida, and at common law, the littoral owner automatically takes title to dry land added to his property by accretion”. Any rule to the contrary could diminish the riparian owner’s rights to access the water and that is arguably one of the most valuable feature of their property.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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