Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 200 West Palmetto Park Road, Suite 301, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is a Florida Bar Board Certified Real Estate Attorney.

MRTA: When is an Easement NOT an Easement?

Florida’s Marketable Record Title Act (“MRTA”), codified in Chapter 712 of the Florida Statutes, eliminates stale claims which may encumber title to land. Unless an interest in the land is properly preserved in the chain of title, or there is a MRTA exception, generally speaking, deeds and other instruments recorded prior to the root of title deed (a deed which has been recorded for at least 30 years before the date of the title search), are extinguished by MRTA and can be ignored by the title examiner. One such MRTA exception is for “unrecorded easements . . . .  so long as the same are used . . . .”

Florida Statute Section 704.08 grants to relatives of any person buried in a cemetery an “easement for ingress and egress for the purpose of visiting the cemetery at reasonable times and in a reasonable manner.” A cursory comparison of the MRTA exception language and the language in 704.08 (both refer to “easements”) might lead one to reasonably conclude that the easement created by 704.08 is a MRTA exception. Not so, says the Third District Court of Appeal majority.

In an unusual factual scenario, during construction of a new housing project, an abandoned cemetery and human remains were unearthed. This caused the developer to incur expenses to redesign the housing project. The developer sued the company that issued the title policy and alleged it was entitled to recover those expenses because the title policy did not list the cemetery or the 704.08 easement right as exceptions to coverage. No relatives of the persons buried in the cemetery ever attempted to exercise or actually exercised the 704.08 ingress or egress easement right to visit the cemetery.  The Court, in Village Carver Phase I, LLC v. Fidelity National Title Ins. Co., 38 Fla.Law.Wkly D2078 (Fla. 3rd DCA 10/04/13), upheld the trial court’s dismissal of the complaint against the title company on several grounds. However, interestingly, the majority opinion stated that: “Section 704.08 does not create an interest in real property. It creates nothing more than a personal privilege, exercisable in the future if (1) a relative . . . of a person buried in the cemetery comes forward, and (2) he or she seeks to visit the cemetery.”

It is difficult to understand why the Court concluded that the interest created by 704.08 is not an easement (which is an interest in land), when 704.08 expressly states that the relative of the person buried in the cemetery “shall have an easement . . . “ It seems that even if  704.08 creates an easement, it was extinguished by MRTA because the unrecorded easement was not used. Senior Judge Schwartz dissented. For now though, the “easement” stated in 704.08 is not an easement.