[CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

Wed Aug 21 12:57:03 PDT 2024

Attached is a prominent 2d DCA opinion on the riparian right of view. However, you’ll need to first prove your client is a riparian before you can argue entitlement to any relief due to an impact on view. If your client does not own land that abuts the sovereign submerged lands, generally you are not a riparian. However, the HOA docs may convey a riparian right. Attached is an article I recently wrote for the Florida Bar Journal on this issue. Hope this helps.

George Spears Reynolds IV

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[Carr Allison]<https://www.carrallison.com/>

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(850) 328-3626

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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Michael Sasso
Sent: Wednesday, August 21, 2024 3:27 PM
To: Jeffrey A. Rembaum <jrembaum at kbrlegal.com>; Denise Hammond <dmhammond6 at gmail.com>; Joel McTague <jmctague at fwblaw.net>
Cc: clc-discussion at lists.flabarrpptl.org; Michael Adam Sasso <masasso at sasso-law.com>
Subject: Re: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

Thank you very much, have to admit this is an interesting topic

Michael C. Sasso
Board Certified in Construction Law
Sasso & Sasso, P.A.
1031 West Morse Boulevard, Suite 120
Winter Park, Florida 32789
Telephone: (407) 644-7161
Facsimile:   (407) 629-6727

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From: Jeffrey A. Rembaum <jrembaum at kbrlegal.com<mailto:jrembaum at kbrlegal.com>>
Sent: Wednesday, August 21, 2024 3:22 PM
To: Michael Sasso <msasso at sasso-law.com<mailto:msasso at sasso-law.com>>; Denise Hammond <dmhammond6 at gmail.com<mailto:dmhammond6 at gmail.com>>; Joel McTague <jmctague at fwblaw.net<mailto:jmctague at fwblaw.net>>
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>; Michael Adam Sasso <masasso at sasso-law.com<mailto:masasso at sasso-law.com>>
Subject: Re: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

Attached is an old article I wrote on the subject from 2012, being re-printed with permission from Rembaum’s Association Roundup.

Homeowner’s Continued Right to See the Ocean: a Matter of Degree
Did you know that, for the most part, the State of Florida holds title to lands under navigable waters and a part of the foreshore  (which, in plain English, means the land between the high and low watermarks). This land is held in trust for all of us to enjoy, but the State is free to dispose of it, too, so long as certain protections are in place. One such protection is the right of an upland owner to an unobstructed view of the Channel (meaning a navigable waterway). What started out as common law rights, are codified in Chapter 271, Florida Statutes.
With that in mind, let us examine the story of Joe who purchases a condominium 20 stories high on the beach. From his gorgeous unit, there are spectacular views. He can look east, northeast, and southeast.  He can enjoy unobstructed views across the ocean’s expanse. From a different balcony, he looks out to the west, northwest and southwest. From this position, he can see the beautiful downtown skyline. Then, Joe’s worst fear comes to life when he learns that two new buildings, taller and wider than his condominium, are proposed.  The first building will be built on the property next door that is adjacent to his condominium, and the other will be built across the street, to the west, directly behind his condominium. When that building is completed, Joe’s view of the lovely downtown skyline will be forever gone.  What rights does Joe have? Sadly, not much when it comes to the view of the skyline, but it is a different story looking east.  Let us first examine the loss of the skyline view.
Florida law disdains negative easements.  A negative easement is a promise not to do something with a certain piece of property, such as not building a structure more than one story high or not blocking a skyline view by constructing a building. A negative easement is sometimes referred to as an easement of light and air. Simply put, there is no right to a negative easement unless such a requirement is set out in a recorded deed restriction.  Therefore, if Joe wants to continue to enjoy his view of the downtown skyline, he might consider buying a unit in the new condominium. However, the same is not true for Joe’s view of the ocean. In this instance, Joe is likely to fare a whole lot better as the body of “riparian law” extends certain protections to owners of “upland” property. Such rights include “the right to an unobstructed view of the channel”. But, does “unobstructed” mean the same thing as “unencumbered”?
When it comes to Joe’s right to view the ocean, there is no bright-line test used to measure when his view is unreasonably impaired. In a 1957, Florida Supreme Court case, Hayes. v. Bowman, the existing owner argued that his neighbor’s project should not be allowed to proceed because it would unreasonably interfere with his existing view of the ocean. The homeowner argued that he should be free from all interference to his view of the ocean.  He argued that his viewing rights should extend diagonally from the corners of his property line, while the developer owner of the adjacent property argued that the homeowner’s right to an unobstructed view of the ocean should only extend directly east from the corners of the property line. The Court rejected both of these arguments and held that “in any given case, the riparian rights of an upland owner must be preserved over an area “as nearest practicable” in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel. In making such “equitable distribution” the court must give due consideration to the lay of the upland shoreline, direction of the Channel and the correlative rights of the adjoining upland owners.
Therefore, Joe’s continued right to view the ocean will require judicial determination. Is Joe’s view unreasonably obstructed or merely encumbered?   In the Hayes case, the Court upheld the lower Court’s ruling in favor of the developer because it found that the lower Court decision in the developer’s favor “did no violence” to the right of the appellant. In other words, while the view might have been encumbered, it was not found to be unreasonably obstructed.  However, it should be noted that the Court’s decision was made based on the evidence presented. With this in mind, it should be mentioned that, had the party who complained about their diminished view presented more substantial evidence to document their situation, perhaps a different result would have been achieved.

Warmest Regards,
Jeffrey A. Rembaum, Esq.
*Board Certified Specialist in Condominium and Planned Development Law
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From: Michael Sasso <msasso at sasso-law.com<mailto:msasso at sasso-law.com>>
Date: Wednesday, August 21, 2024 at 2:35 PM
To: Jeffrey A. Rembaum <jrembaum at kbrlegal.com<mailto:jrembaum at kbrlegal.com>>, Denise Hammond <dmhammond6 at gmail.com<mailto:dmhammond6 at gmail.com>>, Joel McTague <jmctague at fwblaw.net<mailto:jmctague at fwblaw.net>>
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org> <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>, Michael Adam Sasso <masasso at sasso-law.com<mailto:masasso at sasso-law.com>>
Subject: RE: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit
Thank you very much,
Mike Sasso

Michael C. Sasso
Board Certified in Construction Law
Sasso & Sasso, P.A.
1031 West Morse Boulevard, Suite 120
Winter Park, Florida 32789
Telephone: (407) 644-7161
Facsimile:   (407) 629-6727

CONFIDENTIALITY NOTICE:  The information contained in this e-mail message is attorney privileged and confidential. It is intended solely for the use of the recipient named above. If the reader of this message is neither the recipient named above nor the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any disclosure, dissemination, copying, distribution, or the taking of any action in reliance on the contents of this e-mail message is strictly prohibited. If you have received this message in error, please immediately notify us by e-mail. Please also immediately delete the message, and do not forward or copy it to anyone. Thank you.

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Jeffrey A. Rembaum
Sent: Wednesday, August 21, 2024 2:06 PM
To: Denise Hammond <dmhammond6 at gmail.com<mailto:dmhammond6 at gmail.com>>; Joel McTague <jmctague at fwblaw.net<mailto:jmctague at fwblaw.net>>
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>; Michael Adam Sasso <masasso at sasso-law.com<mailto:masasso at sasso-law.com>>
Subject: Re: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

It's been a number of years since I looked at this issue, but however absent a contractual agreement which prefects a right to view, there is no right to a view in the state of Florida except perhaps to the direct upland owner who has a right to view to the navigable harbor.

In your scenario, there appears to be a swimming pool common element  that is the direct upland owner.

If that is the case, since all the owners have an interest in the common elements, perhaps that information could be useful. However if the swimming pool is on Association Property  then that right could inure to the association itself.

Warmest Regards,

Jeffrey A. Rembaum, Esq.
*Board Certified Specialist in Condominium and Planned Development Law
*Florida Supreme Ct. Certified Circuit Civil Mediator
*AV Rated by Martindale-Hubbell
*Member, Super Lawyers
*Member, Florida Trend’s Legal Elite
*Member, Best Lawyers in America, Real Estate
*Florida Community Association Journal, Readers’ Choice Award DIAMOND WINNER FOR BEST LAW FIRM

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KAYE BENDER REMBAUM, P.L.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> on behalf of Denise Hammond <dmhammond6 at gmail.com<mailto:dmhammond6 at gmail.com>>
Sent: Wednesday, August 21, 2024 1:56 PM
To: Joel McTague <jmctague at fwblaw.net<mailto:jmctague at fwblaw.net>>
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org> <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>; Michael Adam Sasso <masasso at sasso-law.com<mailto:masasso at sasso-law.com>>
Subject: Re: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

Mike,

It depends in what the HOA docs say.  Many times, especially on waterfront, there will be a clause that discusses protecting views.

I have a case I’ll send you when I get back to the office.

Denise
Denise Morris Hammond
HAMMOND LAW
dmhammond6 at gmail.com<mailto:dmhammond6 at gmail.com>
407-963-3475

On Aug 21, 2024, at 1:31 PM, Joel McTague <jmctague at fwblaw.net<mailto:jmctague at fwblaw.net>> wrote:

They may have a riparian/littoral rights, and part of the common law littoral rights is the right to an unobstructed view of the water.  Hayes v. Bowman, 91 So.2d 795, 801 (Fla. 1957); Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998).  I’m not aware of any caselaw in Florida that says an individual condo unit owner has littoral rights but last time I looked there was only one case on point in the nation (somewhere in the center part of the country I think) that held that riparian rights did in fact inure to the individual condo owners.  (*note, the issue of oceanfront littoral rights gets complicated fast, and again, last time I checked, there were some major unresolved issues regarding it and some logical leaps to distinguish precedent by the Florida Supreme Court that many people question and at least one appeal to the US Supreme Court that split 4-4).

Also the pool heating system could be violative of 718.113(2) as a material alteration, although what constitutes a material alteration has been in flux in the past couple of years.

Joel M. McTague, B.C.S.
Board Certified in Condominium and Planned Development Law
Florida Supreme Court Certified Mediator – County, Circuit and Appellate
Frank Weinberg Black, P.L.
7805 S.W. 6th Court
Plantation,  FL  33324
954-474-8000
954-474-9850 Fax
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FRANK • WEINBERG      • BLACK
      Boca Raton   Daytona Beach  Plantation
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Michael Sasso
Sent: Wednesday, August 21, 2024 1:02 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Cc: Michael Adam Sasso <masasso at sasso-law.com<mailto:masasso at sasso-law.com>>
Subject: [CLC-Discussion] Question on Obstruction of Ocean View of First Floor Condo Unit

Good afternoon all,

I have a client with an oceanfront, first floor condominium unit.
There’s  a large swimming pool between my client’s unit and the ocean.
The association recently installed a heating system for the pool which partially obstructs my client’s view of the ocean.
Client is not happy.
They rent the unit and this has affected rental rates and occupancy.
Also, when they use their unit their view is obstructed and this impacts their enjoyment.

Does anyone have any experience with this type of issue?

Any suggestions or ideas will be welcome and appreciated.

Thank you.

Respectfully,

Mike Sr

Michael C. Sasso
Board Certified in Construction Law
Sasso & Sasso, P.A.
1031 West Morse Boulevard, Suite 120
Winter Park, Florida 32789
Telephone: (407) 644-7161
Facsimile:   (407) 629-6727

CONFIDENTIALITY NOTICE:  The information contained in this e-mail message is attorney privileged and confidential. It is intended solely for the use of the recipient named above. If the reader of this message is neither the recipient named above nor the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any disclosure, dissemination, copying, distribution, or the taking of any action in reliance on the contents of this e-mail message is strictly prohibited. If you have received this message in error, please immediately notify us by e-mail. Please also immediately delete the message, and do not forward or copy it to anyone. Thank you.

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