DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SEVEN KINGS HOLDINGS, INC., a Florida for-profit corporation,
Appellant,
v.
MARINA GRANDE RIVIERA BEACH CONDOMINIUM ASSOCIATION,
INC., a Florida not-for-profit corporation, and MHC RIVIERA BEACH,
LLC, a foreign limited liability company,
Appellees.
No. 4D22-2084
[June 21, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Paige Gillman, Judge; L.T. Case No.
502020CA010900XXXXMBAK.
Raymond M. Masciarella II, West Palm Beach, for appellant.
Robert Rivas and Joel Kenwood of Sachs Sax Caplan, PL, Boca Raton,
for appellee Marina Grande Riviera Beach Condominium Association, Inc.
LEVINE, J.
A condominium, Marina Grande, entered into an agreement with its
neighbor, Inlet Marina, to build a parking garage on Marina Grande’s
property. As part of the agreement, Inlet Marina received an easement to
use 75 parking spaces in Marina Grande’s parking garage. Years later,
Inlet Marina attempted to assign its easement in the parking garage to a
third party, Seven Kings. Marina Grande claimed that this assignment
was invalid. The trial court granted summary judgment on Marina
Grande’s claim for declaratory relief, finding that the assignment of the
parking garage easement from Inlet Marina to Seven Kings was not legally
enforceable. We agree, and as such, we affirm. On the remaining issue
raised, we affirm without further comment.
Procedural History
In 2004, the City of Riviera Beach approved Inlet Harbor Marina’s site
plan application for the Inlet Harbor Marina Planned Unit Development
(“PUD”). The PUD included, in part, a boat storage marina facility (the
“marina”) and a residential condominium unit, the Marina Grande Riviera
Beach Condominium (the “condominium”). After the PUD was approved,
the marina and the condominium entered into a Development Agreement.
The Development Agreement stated, in part, that the marina would be
entitled to use parking spaces in the condominium’s parking garage:
6. Garage. The [condominium] intends to construct a garage
as shown on the Plan of Development (“Garage”), which
Garage shall include seventy five (75) vehicular parking
spaces (“Parking Spaces”) located on the ground floor, with a
separate distinct entrance and exit providing ingress and
egress from the Parking Spaces to the [marina] for the
exclusive use of the [marina] (“Accessway”). . . . [The marina]
shall at all times have an easement for reasonable utilization
of the 75 Parking Spaces, together with appurtenant access
thereto in the area generally shown on Exhibit G attached
hereto and made a part hereof. . . .
The marina and the condominium also entered into a Reciprocal
Easement Agreement, providing for a “Parking Space and Accessway
Easement”:
The [condominium] intends to construct, among other things,
a parking garage (“Garage”) on the Residential Property as
shown on the Plan of Development which shall include, among
other things, seventy-five (75) vehicular parking spaces and
access drive thereto in the area shown on EXHIBIT G (the
“Parking Spaces”) to be located on the ground floor of the
Garage for the exclusive use by the [marina] and its
successors, assigns, mortgagees, purchasers at foreclosure,
designees, tenants and invitees, with access thereto being
provided via a separate and distinct entrance and exit
providing ingress and egress from the Parking Spaces to the
[marina] . . . .
The condominium built the parking garage, and the marina proceeded
to use its easement to the parking garage for many years. In October of
2016, Seven Kings Holdings, Inc., leased an adjacent space, separate from
the Inlet Harbor Marina PUD, for use as a restaurant. The marina entered
an Easement Dedication Agreement with Seven Kings. For consideration
of $4,000 per year, the marina sought to grant an “Access and Parking
Easement” to Seven Kings:
2
By this instrument and subject to its terms and conditions,
the [marina] hereby grants and conveys (i) a non-exclusive
easement over the Easement Area to [Seven Kings] and [Seven
Kings]’s employees, agents, contractors, tenants, invitees and
licenses (all of the foregoing persons and invitees including
without limitation, [Seven Kings], are hereinafter referred to
as the “[Seven Kings] Permitted Persons”) for parking in the
parking spaces located within the Easement Area and (ii) a
non-exclusive easement for ingress, egress and access over,
across and upon the paved portions of Easement Area to
[Seven Kings] and [Seven Kings] Permitted Persons for
pedestrian and vehicular traffic to access Blue Heron
Boulevard from the Drives, parking spaces in the Easement
Area and the [Seven Kings] Property. 1
The condominium, the residential portion of the PUD, was not a party to
the Easement Dedication Agreement.
The condominium opposed Seven Kings’s plans to develop an adjacent
restaurant. Due to the condominium’s “concerns about the proposed
development,” the condominium and Seven Kings eventually entered an
Agreement for Conditions of Development. The agreement consisted of
provisions on the contested elements of Seven Kings’s restaurant
development. Regarding parking, the agreement stated:
B. PARKING: Seven Kings agrees to implement, if and as may
be needed, a valet parking plan for the Restaurant operations.
Seven Kings further agrees to limit its use of the
[condominium] parking garage to no more than eight (8) key
employees, which eight (8) employees will be issued bar code
stickers, access cards or fobs, as then used by the
Association, and will provide the Association with the names
of such employees together with vehicle information, similar
to, but without additional requirements or in a discriminatory
1 The Easement Dedication Agreement was set to terminate at the discretion of
Seven Kings, the grantee. (“It is the intent of the Grantor and the Grantee that
this Agreement and the rights and obligations hereunder shall terminate on the
earlier of (i) the date which Grantee, or Grantee’s successors or assigns (including
the owner of Grantee’s Property), commences construction of a residential tower
on Grantee’s Property or any portion thereof or (ii) the date that Grantee
designates in writing to Grantor or Grantor’s assigns an election to terminate this
Agreement (“Termination Date”), whereupon as of the Termination Date, this
Agreement shall terminate and the rights and obligations of the Grantor and
Grantee under this Agreement shall terminate as of the Termination Date.”).
3
manner, what is required of other permitted users of the
[condominium] parking garage (“Limitation”). Such Limitation
shall not include individuals that may have a right to park
within the [condominium] parking garage unrelated to the
Restaurant, including, by way of example and not limitation,
marina customers, [condominium] owners and renters, and
their respective guests and invitees.
The Agreement for Conditions of Development was later amended to
specify that those eight parking spaces “shall be limited to those parking
spaces identified in the Reciprocal Easement Agreement . . . on the ground
floor of the Garage . . . .” The marina was not a party to the Agreement for
Conditions of Development.
In October of 2020, the condominium filed a declaratory action against
Seven Kings and the marina. 2 The condominium argued that the
easement appurtenant created by the Reciprocal Easement Agreement
could not be transferred separate and apart from the dominant tenement,
the marina. The condominium requested a declaration that the Easement
Dedication Agreement between the marina and Seven Kings, purporting to
grant Seven Kings rights to the marina’s easement over the condominium’s
parking garage, was legally unenforceable and, thus, invalid.
The condominium filed a motion for summary judgment, arguing that
the easement could not be transferred separately from the marina and that
the Easement Dedication Agreement granted the easement to the marina,
not Seven Kings. Further, the motion argued that Seven Kings abandoned
its claim to the 75 parking spaces by modifying its claim to eight spaces
in the Agreement for Conditions of Development and that Seven Kings’s
affirmative defenses were not sufficient to defeat summary judgment.
Seven Kings filed a motion for partial summary judgment, arguing that
the Easement Dedication Agreement between Seven Kings and the marina
was valid and enforceable because the scope of the easement that the
marina had originally received from the condominium allowed it to be
assigned. Seven Kings also argued that the parking garage easement had
not been severed from the dominant tenement, the marina, because the
Easement Dedication Agreement merely transferred a non-exclusive right
to use the parking spaces, and the language in the Easement Dedication
Agreement permitted use of the parking garage easement by assignees of
the marina. The president of the marina, who was also president of Seven
2The marina was sold in 2017. MHC Riviera Beach, LLC, an appellee in this
action, is now the owner of the marina.
4
Kings, stated in an affidavit that the parties to the Reciprocal Easement
Agreement, the marina and the condominium, intended the parking
garage easement to be a fee ownership transfer with all rights that attach
to ownership.
The trial court granted the condominium’s motion for summary
judgment and denied Seven Kings’s motion for partial summary judgment.
The trial court determined that the easement conveyed from the
condominium to the marina was an easement appurtenant, which could
not be assigned separately from the dominant estate, that being the
marina. Thus, the trial court found the portion of the Easement
Dedication Agreement purporting to allow Seven Kings the right to use the
condominium’s parking garage pursuant to the marina’s easement was
invalid and thus unenforceable. The trial court also rejected Seven Kings’s
argument that the Easement Dedication Agreement did not sever the
easement, but instead assigned the marina’s easement, and held that
there was no language in the relevant instruments permitting the transfer
of the easement to Seven Kings. This appeal follows.
Analysis
This court reviews the entry of summary judgment de novo. Orlando v.
FEI Hollywood, Inc.,
898 So. 2d 167, 168 (Fla. 4th DCA 2005). Summary
judgment is required “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter
of law.” In re Amends. to Fla. R. Civ. P. 1.510,
309 So. 3d 192, 192 (Fla.
2020) (citation omitted). Under the new Florida summary judgment
standard, “[a] party opposing summary judgment ‘must do more than
simply show that there is some metaphysical doubt as to the material
facts.’”
Id. at 193 (citation omitted).
An easement may either be appurtenant or in gross. Palm Beach
County v. Cove Club Investors Ltd.,
734 So. 2d 379, 388 n.13 (Fla. 1999).
An easement in gross is a “mere personal interest[] in land that [is] not
supported by a dominant estate.” Dunes of Seagrove Owners Ass’n v.
Dunes of Seagrove Dev., Inc.,
180 So. 3d 1209, 1211 (Fla. 1st DCA 2015).
“[A]n appurtenant easement is a permanent easement running with the
land and passes as an incident to it.” Morris v. Winbar LLC,
273 So. 3d
176, 178-79 (Fla. 1st DCA 2019). Easements in gross are not necessarily
adjacent to the land, whereas easements appurtenant are adjacent to the
5
dominant estate. The trial court determined that the Reciprocal Easement
Agreement created an easement appurtenant. 3
An appurtenant easement includes both a dominant tenement and a
servient tenement. “The easement holder possesses the dominant
tenement, while the owner of the land against which the easement exists
possesses the servient tenement.” Dianne v. Wingate,
84 So. 3d 427, 429
(Fla. 1st DCA 2012). In this case, the marina was the dominant tenement
while the condominium, as owner of the garage, was the servient
tenement. Since an easement appurtenant runs with the land, it can be
transferred with the dominant tenement. Behm v. Saeli,
560 So. 2d 431,
432 (Fla. 5th DCA 1990) (citing Jon W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land § 8.01 (1988)).
Because an easement appurtenant attaches to a dominant tenement,
the right to use the parking garage could be transferred from the marina
to Seven Kings only if the marina, the dominant tenement and the land
benefitting from the easement, had also been transferred:
An easement appurtenant cannot exist apart from a dominant
tenement and can be transferred only by transfer of the
dominant property. Such a servitude may not be transferred
separately from the land to which it is appurtenant, and an
instrument purporting to transfer such an interest is ineffective.
Bruce & Ely, supra, § 9.2 (emphasis added).
Thus, the Easement Dedication Agreement, which attempted to
transfer the parking garage easement individually to Seven Kings, was
ineffective because the parking garage easement cannot exist apart from
the dominant tenement, the marina. Restatement (Third) of Prop.
(Servitudes) § 5.6 (2000) (“[A]n appurtenant benefit may not be severed
and transferred separately from all or part of the benefited property.”). As
a result, the trial court did not err by holding that the portions of the
Easement Dedication Agreement purporting to transfer the parking garage
easement were invalid.
3 On appeal, Seven Kings does not challenge the trial court’s finding that the
easement granted to the marina was an easement appurtenant. Moreover, there
is a legal presumption in favor of easement appurtenants, as easements in gross
are not favored by the courts. Devino v. 2436 East Las Olas, LLC,
306 So. 3d
118, 119-20 (Fla. 4th DCA 2020).
6
Other courts have agreed with this conclusion. A federal court
concluded that an easement appurtenant is not independently alienable:
Florida law recognizes that the rights conveyed by an
easement appurtenant are “attached to and belong[] with
some greater or superior right as a dominant estate.” N. Dade
Water Co. v. Fla. State Turnpike Auth.,
114 So. 2d 458, 461
(Fla. 3d DCA 1959) (“[An easement appurtenant] is incapable
of existence separate and apart from the particular land to
which it is annexed.”); Dianne v. Wingate,
84 So. 3d 427, 429
(Fla. 1st DCA 2012) (“The easement holder possesses the
dominant tenement[.]”).
This is consistent with the common law position that “an
appurtenant benefit may not be severed and transferred
separately from all or part of the benefited property.”
Restatement (Third) of Property: Servitudes § 5.6 (2000). See
also Fruth Farms v. Village of Holgate,
442 F. Supp. 2d 470,
476 (N.D. Ohio 2006) (“One cannot separate an easement
appurtenant from the dominant estate. An easement
appurtenant cannot, therefore, be assigned to another person
separately from the dominant tenement.”) (internal citations
omitted)); Kapp v. Norfolk Southern Ry. Co.,
350 F. Supp. 2d
597, 606 (M.D. Pa. 2004) (“[An easement] is not independently
alienable but is conveyed concurrently with the estate to
which it is tied.”); Rosen v. Keeler,
986 A.2d 731, 740 (N.J.
Super. Ct. App. Div. 2010) (“Treatises dealing with the topic
are in universal agreement that absent a clear intent to the
contrary in the instrument creating the easement an
easement appurtenant benefits only those with a possessory
interest in the dominant estate, and such benefit cannot be
assigned to third parties independent of the dominant land to
which it is appurtenant.” (internal citation omitted)).
Spear v. Old Republic Nat’l Title Ins. Co., No. 3:12-cv-231-MW/CJK,
2013
WL 12099358 at *3-4 (N.D. Fla. Sept. 24, 2013).
The restriction on severing an easement appurtenant from a dominant
tenement also applies even to the conveyance of an easement for a set term
of years. In Schwartzman v. Schoening,
669 N.E.2d 228 (Mass. App. Ct.
1996), the condominium conveyed to the condominium unit owner with
the condominium unit the right to use two designated parking spaces.
Id.
at 229. The condominium unit owner then attempted to execute a ninety-
nine-year lease to another person for the use of the parking spaces that
7
were reserved to the condominium unit owner.
Id. In the declaratory
action, the Massachusetts court found that the right to use the parking
spaces was a property interest appurtenant to that condominium unit.
Id.
The court held that, as an easement appurtenant, the right to use the
parking spaces “is not independent of and severable from [the
condominium unit].”
Id. The court relied both on the governing
documents and established law.
Id. at 230 (“The inseparability of the
parking spaces from the unit to which they exclusively were reserved is
not inconsistent with the law of real property upon which the defendants
rely.”). Thus, the court held that, “[t]reated as an easement appurtenant
to Unit 9, the right to exclusive use of the parking spaces is, by definition,
‘incapable of existence separate and apart from the particular land to
which it is annexed.’”
Id. (quoting Black’s Law Dictionary 509 (6th ed.
1990); see also City of Orlando v. MSD-Mattie, L.L.C.,
895 So. 2d 1127 (Fla.
5th DCA 2005) (declining to allow appellant to lease an easement in gross
because the proposed use was beyond the easement’s scope).
Seven Kings relies on a New Hampshire case, Ettinger v. Pomeroy
Limited P’ship,
97 A.3d 1133 (N.H. 2014), for the proposition that an
easement appurtenant can be transferred separate from the dominant
estate if the language of the easement allows. However, Ettinger is
distinguishable. In Ettinger, the owner of the dominant tenement acquired
an additional adjacent parcel. Id. at 1135. A subsequent owner purchased
a portion of the owner’s parcels, containing both a portion of the dominant
tenement and most of the additional adjacent parcel. Id. The owner of the
servient tenement sued, “asserting that the easement . . . may benefit only
[the original lot], and may not benefit [the additionally purchased adjacent
lot] . . . .” Id. at 1136. The Ettinger court remanded for further
proceedings, relying on previous cases holding that “the mere addition of
other land to the dominant estate does not necessarily constitute an
overburden or misuse of [an] easement.” Id. at 1138 (citation omitted).
We find Ettinger distinguishable from the instant case. Here, in this
case, Seven Kings does not own any portion of the marina, the dominant
tenement which is benefitted by the parking garage easement. Unlike the
easement in Ettinger, Seven Kings is not seeking to add additional land to
a dominant tenement, but rather share an easement appurtenant with an
unrelated parcel.
Seven Kings also argues that the plain language of the governing
documents allowed the marina to designate Seven Kings as a user of the
parking space easement because the Reciprocal Easement Agreement
specified that the users of the parking space easement included
“designees” of the marina. We find that this argument fails as well. The
8
Reciprocal Easement Agreement states that the parking space easement
is “for the exclusive use by the [marina] . . . .” See Schwartzman, 669
N.E.2d at 221, 223 (holding that the easement granting a particular unit
the “exclusive right to use” the parking spaces was, “by definition,
‘incapable of existence separate and apart from the particular land to
which it is annexed.’”) (citation omitted). A passing reference to
“designees” falls significantly short of demonstrating a “clear intent to the
contrary” in the Reciprocal Easement Agreement between the marina and
the condominium. Rosen,
986 A.2d at 740 (“Treatises dealing with the
topic are in universal agreement that absent a clear intent to the contrary
in the instrument creating the easement an easement appurtenant
benefits only those with a possessory interest in the dominant estate, and
such benefit cannot be assigned to third parties independent of the
dominant land to which it is appurtenant.”) (emphasis added). 4
Finally, the marina’s president attempts to justify the easement by
stating that the parties’ intent when entering the Reciprocal Easement
Agreement was for the easement be a fee simple transfer of the parking
spaces. That is incorrect since “[a]lthough an easement is a real property
interest in land, it is a right distinct from ownership of the land itself and
does not confer title to the land on which the easement is imposed.”
Dianne,
84 So. 3d 429. Therefore, the Reciprocal Easement Agreement
could not have transferred the parking garage spaces to the marina in fee
simple.
We find that the easement granting the marina the right to use 75
spaces in the condominium parking garage was not severable from the
dominant tenement. Thus, the provisions in the Easement Dedication
4 Seven Kings also argues that the condominium conceded the right to use the
parking garage when it relied on the Agreement for Conditions of Development
and its addendum by arguing that it had modified Seven Kings’s claim to the
eight parking spaces. This argument also fails. Most importantly, as the owner
of the parking garage, the condominium undoubtedly had the right to grant Seven
Kings an easement for use of spaces in the parking garage. Additionally, the
condominium did not concede that Seven Kings had the right to use the 75
parking spaces by granting Seven Kings the use of eight parking spaces. Neither
the Agreement for Conditions of Development nor the addendum references
Seven Kings’s alleged right to use the 75 parking spaces in the condominium’s
parking garage. Additionally, the Agreement for Conditions of Development is
not properly in front of this court because, at this time, the condominium has
not deprived Seven Kings of the right to use those eight parking spaces it granted
in the Agreement for Conditions of Development.
9
Agreement purporting to grant Seven Kings the right to use the 75 parking
spaces were invalid, and, thus, unenforceable. We affirm.
Affirmed.
FORST and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
10
