SOURCES OF TITLE I. [ 1.1] SCOPE II. [ 1.2] INTRODUCTION

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1 RONALD A. KRISS* SHARON CHRISTENBURY** 1 SOURCES OF TITLE I. [ 1.1] SCOPE II. [ 1.2] INTRODUCTION III. PRIMARY SOURCES OF TITLE A. [ 1.3] In General B. [ 1.4] Legislative Grants C. [ 1.5] Spanish Grants D. [ 1.6] Land Patents E. [ 1.7] Deeds F. Accretion, Reliction, Avulsion, Erosion, And Riparian Rights 1. [ 1.8] In General 2. Definitions a. [ 1.9] Accretion b. [ 1.10] Reliction c. [ 1.11] Avulsion d. [ 1.12] Erosion e. [ 1.13] Riparian Rights 3. [ 1.14] Accretion Versus Reliction 4. [ 1.15] Avulsion Versus Accretion And Reliction 5. [ 1.16] General Effect On Boundaries And Ownership *J.D. with honors, 1971, University of Pennsylvania. Mr. Kriss is a member of The Florida Bar and the Dade County Bar Association and has also been admitted to practice in New York. He is a shareholder in Akerman Senterfitt in Miami. **J.D. with honors, 1988, University of Miami. Ms. Christenbury is a member of The Florida Bar and has also been admitted to practice in the District of Columbia. She is General Counsel to real estate developer Crescent Heights of America and a partner in its affiliated title company. The authors wish to thank Brian Audette, an associate with DLA Piper Rudnick Bray Cary US LLP, Chicago, for authoring the bankruptcy section. 1-1

2 6. [ 1.17] Land Abutting A Right-Of-Way G. Tax Titles 1. [ 1.18] In General 2. [ 1.19] Administrative Tax Deeds 3. [ 1.20] Subsurface Interests 4. [ 1.21] Murphy Act Titles 5. [ 1.22] Title Based On Foreclosure Of Tax Liens 6. [ 1.23] Tax Deeds As Root Of Title H. Adverse Possession 1. [ 1.24] In General 2. [ 1.25] Possession Under Color Of Title 3. [ 1.26] Possession Without Color Of Title 4. [ 1.27] Manner Of Possession I. [ 1.28] Boundaries By Acquiescence And Agreement J. Dedication 1. [ 1.29] In General 2. [ 1.30] Intention To Dedicate 3. [ 1.31] Acceptance Of Dedication K. Title By Estoppel 1. [ 1.32] Estoppel By Conduct 2. [ 1.33] Estoppel By Deed 3. [ 1.34] Other Recognized Estoppels L. Title To Filled-In And Submerged Lands 1. [ 1.35] In General 2. [ 1.36] Former Method Of Obtaining Title 3. [ 1.37] Current Method Of Obtaining Title M. [ 1.38] Judicial Sales N. [ 1.39] Execution Sales O. [ 1.40] Bankruptcy P. [ 1.41] Receiver s Deed Q. Passage Of Title On Death 1. [ 1.42] In General 2. [ 1.43] Right To Possession And Sale 3. [ 1.44] Distribution Of Decedent s Property R. [ 1.45] Eminent Domain S. [ 1.46] Marketable Record Title Act T. [ 1.47] Civil Forfeiture (In Rem Foreclosure) IV. [ 1.48] RELEASES AND DISCLAIMERS FROM STATE 1-2

3 SOURCES OF TITLE 1.2 I. [ 1.1] SCOPE This chapter presents the sources of title to real property in Florida. Of necessity, many of these sources are treated briefly. More detailed discussions of certain sources of titles, such as title from a mortgage foreclosure sale, appear elsewhere in this manual. II. [ 1.2] INTRODUCTION Most land titles to real property in Florida are based on an original grant, land patent, or conveyance of public lands from a sovereign state. Historically, these consist of the following: Spanish grants to individuals made before June 24, 1818, and recognized or confirmed by the United States under the Treaty of Cession dated February 22, Grants from the United States to the territory or state of Florida of lands ceded to the United States by the Treaty of Cession from Spain, followed by conveyances from the state of Florida of those lands. Land patents from the United States to persons, of lands ceded to it but not granted to Florida. Conveyances from the state of lands under bodies of navigable water or of tidelands. In addition, there are a few titles to land that are based on British grants from See 6 Fla.Hist.Q. 120 (1927). Title from the sovereign is commonly referred to as original title. Every attorney engaged in real estate practice should read Whitfield s Notes, Legal Background to the Government of Florida. These notes develop the history of the various sources of original title. Justice James B. Whitfield of the Florida Supreme Court compiled his Notes in the early days of the 20th century. The Notes are on pages of the first volume of WEST S FLORIDA STATUTES ANNOTATED (1961). Because that volume is not generally available, however, extensive excerpts are reproduced in the Appendix to this manual. 1-3

4 1.2 FLORIDA REAL PROPERTY TITLE EXAMINATION AND INSURANCE Later events may affect the title and create new and independent sources of title by means other than deeds of conveyance. For example, if an owner dies and the title passes to the heirs under the statutes of descent, a new source of title is established. If the owner fails to pay ad valorem taxes levied and assessed against the real property and that property is sold by the taxing authority, the result is that a new source of title is created. It is unsafe to assume that title examination can begin with a new source of title. Rather, the examination must be based on an original title. There are various reasons for this. For example, previous restrictions and other matters that survive conveyances may not be revealed by the new source, or two or more independent sources of title may exist. Therefore, proper examination procedures must be followed regularly and examiners must go behind any source of title other than the original title. Even then, certain matters must be observed. The safest titles are probably those founded on the Marketable Record Title Act or on adverse possession; one of those is a matter of judgment and the other is not ascertainable from the records. III. PRIMARY SOURCES OF TITLE A. [ 1.3] In General The following are the primary sources of title: Legislative grants. Spanish land grants. Land patents. Deeds. Accretion, reliction, avulsion, and erosion. Tax titles. Adverse possession. Acquiescence and disputed boundaries. Dedication. 1-4

5 SOURCES OF TITLE 1.4 Title by estoppel. Title to filled-in and submerged lands. Judicial sales. Execution sales. Bankruptcy. Receivers deeds. Passage of title on death. Eminent domain. Each of these sources is discussed in the following sections. B. [ 1.4] Legislative Grants Much of what is now privately owned land was granted to the state of Florida through federal legislation. When the state was established (by Act of Congress on March 3, 1845, 5 Stat. 742), it became the owner as sovereign of all the land under navigable bodies of water and tidelands within the state under the Equal Footing Doctrine. See Pollard v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). See also 2.7 of this manual. However, the Equal Footing Doctrine did not operate to reserve title to fast dry lands to individual states. See Scott v. Lattig, 227 U.S. 229, 33 S.Ct. 242, 57 L.Ed. 490 (1913). The uplands, including swamps and overflowed lands owned by the United States, continued to be property of the United States. The Act of March 3, 1845, 5 Stat. 788, supplemental to the act admitting Florida into the Union, provided: That in consideration of the concessions made by the State of Florida in respect to the public lands, there be granted to the said State eight entire sections of land for the purpose of fixing their seat of Government; also, section number sixteen in every township, or other lands equivalent thereto, for the use of the inhabitants of such township, for the support of the public schools; also, two entire townships 1-5