By Michael J. Gelfand, Esq. / Published January 2017
In Florida, Chicken Little is upside down. Instead of what is falling, the opposite of the nursery rhyme is of concern—what is rising! Thus, this issue addresses community infrastructure generally, in light of a recent court decision.
Regardless of what some talking heads and a few politicians may argue, the experts, whether scientists, urban planners, or our men and women in uniform charged with our nation’s defense, are all in agreement. Sea levels are rising.
A recent New York Times report analyzed data from a number of coastal areas and found that flooding has become more frequent and sustained. Walk along Florida’s coastline, and you can see that erosion is a constant.
No longer is the question, will this impact Florida associations? The question is, how and to what extent will sea level change impact associations, including those that are not immediately along the Atlantic Ocean or the Gulf of Mexico?
All Florida communities are impacted by sea level rise. Of course, oceanfront communities see narrower beaches. Communities on the intercoastal and intracoastal waterways see the water creeping up their seawalls, with some now experiencing breached seawalls even without hurricanes.
Inland, communities are experiencing rising waters, albeit on a stealthier basis. As water cannot flow out of ponds, lakes, and canals, those areas must retain water and will overflow, causing flooding in inland communities.
This is not a political issue. Many cities are now planning for permanent changes as a result of rising water levels. For example, Norfolk, Virginia, planted large rulers along roadsides. Why? So that drivers know the depth of the water to determine whether it is safe to drive through or risk drowning in one’s car. Chicago amen-ded specifications, providing for water runoff in special catch bins. Public facilities now require utility infrastructures to be raised from basements and ground level. Even the armed forces’ bases have started planning; for example, some bases are installing flood gates.
What is an association to do? Gearing up in advance for water level rising is akin to the cry for hurricane protection in the 1970s and 1980s. Only after Hurricane Andrew and a series of hurricanes instilled the “truth” in community associations were storm issues considered. Notoriously conservative in spending, associations and owners realized that investment in hurricane protection was well worth the cost.
Similarly, associations must consider in their maintenance and long-term plans how to address water level rise. As buildings age and systems must be replaced, there are opportunities for associations to adapt. For example, when a generator is in a low-lying area and needs to be replaced, that may be an appropriate time to move the generator to a higher location. Similarly, as a building’s electrical system requires replacement, switches, boards, and meters can be raised. Conduits and supplies can be relocated and sealed.
Of course, there will be expenses, but just as over time other infrastructure incorporates safety systems, protecting against water level rise may be a “no brainer.” Some associations may have covenant or “document” limitations on how much money can be spent or whether alterations can be undertaken. Associations may be exempt from alteration approval requirements if the alteration is required by code according to some court ruling. Those are issues that likely will require analysis by an association’s legal counsel.
Directors cannot proverbially “put their heads in the sand,” or in this case, under water. Just as a director is potentially liable for ignoring obvious safety dangers, as a community undertakes infrastructure repair and replacement without considering anticipated issues, not just water level change but also protection from hurricanes, there is potential director liability.
This firm is proud that almost uniformly the directors of communities the firm represents are there “to do the right thing” and do not pander to be the “cheapest” community. Nevertheless, elsewhere there have been directors who don’t quite get it.
So, support directors in their effort to do the right thing, and plan for the future while waters are calm and there is time. Review budgets with management, and covenants and spending restrictions with counsel. Avoid being forced to react when waters are literally rising through the floorboards.
Even as waters rise, weather and geology are unpredictable—so much so that recently a Florida appellate court addressed the right to ownership of new land which gradually built up on the oceanfront side of an owner’s waterfront property. New land also creates questions of maintenance. This new land is called “alluvium,” which is defined as, “the insensible increase of the earth on a shore or bank of a river by the force of the, water, as by a current or by waves, which is so gradual that no one can judge how much is added at each moment of time. ‘A creation denotes the act.’ However, the terms are used synonymously. Avulsion is sudden and perceptible (www.lectlaw.com/def/a185.htm).
Alluvium may not be a precious metal or stone. After all, it is “only” sand. However, here in Florida the value is particularly recognized where alluvium is literally a special type of real property. Essentially, alluvium is a new beach!
In Accardi v. Regions Bank, No. 4D15-3213 (Fla. 4th DCA, September 21, 2016), the Florida appellate court ruled that “alluvium” was part of the original property from the moment of its creation. The facts in Accardi indicate that the owner obtained title to oceanfront property in 1996 with the legal description identifying a platted lot and block. In 1997, the owner used the same legal description to transfer the property to himself and his new wife.
In 2002, the owners obtained a quiet title judgment finding that the “alluvium” belonged to the owners. Thereafter, the parties divorced, and the ex-wife re-conveyed the property to the owner by a quit claim deed using the same legal description.
In 2008, the owner provided Regions Bank a mortgage with same legal description as used in the initial deed. After the owner defaulted, the bank filed a complaint to foreclose on the mortgage and to reform the mortgage to include the alluvium as part of the secured property. The owner counterclaimed for a declaration as to whether the alluvium was part of the property or a separate parcel not encumbered by the mortgage.
The trial court concluded that the alluvium was “automatically added to the original property as it formed and, because it was not expressly carved out of any subsequent grant, was included in the mortgage.” The court granted judgment for the bank and reformed the mortgage to include the alluvium.
The Florida appellate court agreed with the trial court’s decision. The court found that the alluvium was part of the original property from the moment of its creation. The mortgage included the alluvium because there was no express separation of the alluvium from the upland property.
Many people may conclude that with global warming and increased sea height, there will be little opportunity for alluvium in the future. However, many scientists have remarked that among initial impacts of climate change, there will be uncertainty, and more powerful storms. This may result in more frequent incidents of alluvium.
Community associations along shorelines, whether ocean, lake, river, canal, or pond will likely be deeply sensitive concerning where their property lines are located. This impacts the identification of boundaries for liability and maintenance duties. The legal description and survey sketches attached as exhibits to declarations will be viewed with increased significance.
Of course, at least in terms of alluvium, associations and other waterfront owners may be reminded that what is given, may be easily taken, or washed, away!
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & ARPE, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate, & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at email@example.com or (561) 655-6224.