August 28, 2014

Florida county ignores entrepreneurs’ property rights and hundreds of years of law

By Christina M. Martin Attorney
slide-feature-flash-beach-grille
Robert and Anita Breinig

If you’ve ever bought a house or piece of land, you probably paid for a title search and title insurance.  A title search makes sure that the seller actually owns the property, free from any undisclosed liens or other third-party interests. Title insurance protects you from the financial loss that could accompany any interests that the title search overlooks.  You are only able to afford title insurance, because the law has long protected innocent buyers from unrecorded interests that would not show up in a site inspection.  The basic rules are simple and accepted across the country: if you record your property interest with the county clerk, then it is still good against a subsequent buyer.  If you don’t record your property interest, then you can lose it to an innocent buyer.

The rule is the same in Florida.  But one Florida county thinks that it is above the law.  In the process, it has threatened the dream and livelihood of entrepreneurs Robert and Anita Breinig.

In 2011, the Breinigs bought a piece of property in Hobe Sound, Florida, for their restaurant, the Flash Beach Grille.  They did their due diligence, paying for a title search and title insurance, and a survey of the land.  Imagine the Breinigs’ surprise then, when more than a year later the County insisted they were violating a County-owned conservation easement located on the Breinigs’ property.  A conservation easement is a land restriction that requires a property owner to keep land in preservation condition.

According to the County, in 1990, a previous owner – three owners ago in the chain of title – agreed to the easement in exchange for a permit.  The County insists that means that the Breinigs can’t put anything on a 40-by-70 foot space behind their restaurant, including essential restaurant equipment and a catering trailer.  Moreover, the county claims the Breinigs must remove some plants and replace them with other plants from a county-approved list.  That list doesn’t include the fruits, herbs, and vegetables that the Breinigs had in mind for their organic farm-to-table plans.  If the Breinigs don’t comply, the County has been threatening massive $1000-per-day fines.

There’s just one problem with the County’s threats.  Under Florida law, a conservation easement must be recorded with the county clerk, just like any other interest in land.  But the County never recorded the easement.  The Breinigs did not know about the conservation easement and had no reasonable way of finding out about it when they purchased the property.  Under Florida law, that means that Martin County long ago lost whatever conservation easement they might have had.

Represented by Pacific Legal Foundation attorneys, the Breinigs are taking a stand against the County’s illegal threats.  Today, we filed a lawsuit on their behalf, alleging that the County is violating the Breinigs’ rights by ignoring Florida’s recording law.  This case could have a significant impact in Martin County, where hundreds of landowners have similar easements on their land.  If the County can ignore the state’s recording law, then the implications would be grim, driving title insurance costs up and property values down.  Moreover, if the courts don’t step in to protect the Breinigs — and by extension Martin County landowners — then no Florida buyer is safe from secret government restrictions.

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