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.