Bricklemyer Smolker & Bolves, p.a.

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Property Rights Alerts

Commercial use restrictions may extend further than you think. In Seminole County, a developer owned two adjacent parcels in two different entities. One parcel was restricted against use as a pharmacy and the other was not. The developer submitted a plan of development to governmental authorities to construct a pharmacy on the unrestricted parcel and parking facilities on the restricted parcel. Cross easements were created for access, parking, drainage and utilities connecting the two parcels.

A competing pharmacy, which had previously owned the restricted parcel and imposed the restriction for its benefit, sued to enjoin the construction of the pharmacy even though the restriction did not include the pharmacy parcel. The Court of Appeals ruled that, although the parcel where the building was to be constructed was not encumbered, the parking area was and it would defeat the purpose of the restriction if the pharmacy were built. The Court found that the parking facilities were an integral part of the plan and was essential to operating the pharmacy and on these grounds extended the restriction to the unrestricted parcel. Construction on the pharmacy was halted.

This is apparently the first case of its kind in Florida and should throw up some warning signs for commercial developers. Specifically, if a development parcel relies upon cross access, utility, parking and drainage easements over other land to support the project, one must be sure to ascertain what encumbrances may attach to the easement property. This investigation should be done early before substantial sums are expended.

DOUGLAS C. ROLAND, ESQ.
Bricklemyer Smolker & Bolves, P.A.
500 East Kennedy Boulevard Suite 200
Tampa, Florida 33602
DouglasR@bsbfirm.com