The Court, in the recent case of Clipper Bay Investments, LLC v. Florida DOT, 38 Fla. Law Wkly D271 (Fla. 1st DCA , February 5, 2013), had the opportunity to determine whether the entire right of way interest granted in fee simple to the Florida Department of Transportation (“FDOT”) for Interstate Highway 10 (“I-10”), was excepted from the application of the Marketable Record Title Act (“MRTA”). Clipper Bay’s root of title deed, which included the disputed portion of I-10, was recorded subsequent to the fee simple interest of FDOT, and FDOT did not file a notice preserving its interest in the property. However, FDOT actually used a portion of the land described in the right of way deed (but not the disputed land) as a right of way. The fee simple deed was granted to FDOT for right of way purposes.
Clipper Bay relied on a case decided in 1992 by the Fourth District Court of Appeal. The Fourth District had concluded that an interest held in fee simple is not an easement or right of way under the easement or right of way exception contained in MRTA (F.S. Sec. 712.03(5)), even though the fee simple deed conveyed the property to Palm Beach County for the stated purpose of “right of way and easement in and over…” the land in question.
The First District disagreed with the Fourth District’s interpretation of F.S. Sec. 712.03(05) and held that even when a right of way interest is held in fee simple, if in fact the fee simple deed actually grants a right of way and the property is used as a right of way, it falls within the definition of “right of way” contained in MRTA. Thus, FDOT did not have to file a notice preserving its interest in I-10, even though its interest arose prior to Clipper Bay’s root of title deed. The Court held that FDOT’s I-10 right of way fee simple interest was not extinguished by MRTA. However, the Court also held that any portion of the land described in the right of way deed that was not actually used as a right of way, is extinguished by MRTA. The Court concluded that FDOT had failed to prove actual use of the disputed portion of land as a right of way and therefore, FDOT’s interest in the disputed portion was extinguished by MRTA.
It would appear that this issue may find itself before the Florida Supreme Court because of the conflict between the two District Court of Appeals’ decisions.
Update March 26, 2015: The Florida Supreme Court quashed part of the 1st DCA’s decision which held that only the portion of land described in the fee simple right of way deed that was actually used by FDOT as a right of way was not extinguished by MRTA. The Florida Supreme Court held that whatever form the right of way takes (easement or fee simple deed), the entire land described in the right of way instrument is preserved by MRTA ( even without filing a preservation notice), provided any portion of the land is actually used as a right of way (40 Fla.L.Weekly S164b). So a right of way in actual use in whatever form, in its entirety, is, after all, a right of way not extinguished by MRTA . As pointed out in the concurring opinion however, the Florida Supreme Court majority ruled in part that a “lease” is a “muniment” of title. That appears to be a very strained reading of MRTA’s definition of “muniment of title”, and this writer is in agreement with the concurring opinion on that issue.
