336 BIENNIAL REPORT OF THE ATTORNEY GENERAL

Transcription

1 I 1 II 336 BIENNIAL REPORT OF THE ATTORNEY GENERAL tees of the internal improvement fund. However, when the mangrove plants, or the major part thereof, have died, the said lands become upland instead of submerged lands; however, the title to such lands will continue to be vested in the said trustees. Section , F. S., provides that the flood control district taxes imposed under and pursuant to , F. S., shall be imposed upon the "lands held by the trustees of the internal improvement trust fund," within the flood control district, provided, however, "there shall be excluded from district taxes all bodies of navigable water and unreclaimed water areas meandered by the public surveys." The mangrove islands and forest areas abovementioned and described in the tax notices above-mentioned as being in sections 26, 27 and 33, township 43 south, range 25 east, appear to be within the meandered area, described in the surveys and on the survey maps, as being the Calloosahatchee river, and was excluded from said survey. Unless and until the mangrove islands and forest areas above described have filled in and become upland, and the mangrove growth or a major portion thereof has died, as above discussed, the so-called mangrove islands and forest areas remain submerged lands and not upland, and are within the exemption. from the flood control district taxes provided for in , F. S. Not until such mangrove islands and forest areas have become upland and the mangrove growth or major portion thereof has died, will such lands be taken from under the exemption provided in said , F. S. All lands held by the trustees of the internal improvement trust fund, except "all bodies of navigable water (and the submerged lands thereof) and the unreclaimed water areas meandered by the public surveyor," are subject to the taxes imposed under , F. S. Mangrove islands and forest areas remain submerged lands within this exemption from taxation, unless and until such areas have filled in and become upland and the mangrove growth, or a major portion thereof, has died May 13, 1964 REAL PROPERTY SALE OF CONDOMINIUM PARCELS AND RIGHTS AND INTERESTS THEREIN , , , ; CH. 711, F. S.; CR , LAWS OF FLORIDA;. 7, ART. X, STATE CONST. To: Ray E. Green, State Comptroller, Tallahassee QUESTIONS: 1. May the developer and builder of a condominium under Ch. 711, F. S., sell and convey the condominium parcels or any of them subject to a reservation of rental to the developer for a period of 99 years? 2. Is such a rental arrangement for a period of 99 years with a reservation to the owner permissible under Ch. 711, F. S., and a legal estate thereunder? Some confusion appears to have arisen because of AGO , of Feb. 4, 1964, which dealt with ad valorem taxation of condominium parcels of real property, some having construed the said opinion as holding that only a fee simple absolute title may exist in a condominium parcel. When dealing with ad valorem taxation in this state we must keep in mind that "under Florida taxing statutes the levy and assessment is on the realty itself, at its full

2 BIENNIAL REPORT OF THE ATTORNEY GENERAL 337 cash value, regardless of the existence of estates in it," (Bancroft Inv. Corp. v. Jacksonville, 157 Fla. 546, 27 So. 2d 162, text 167), unless otherwise provided by law. This being true, ad valorem taxes are imposed against the condominium parcel without regard to the existence of estates in it. In our said opinion of Feb. 4, 1964, we dealt with the taxable interest in a condominium parcel only, and its right to tax exemption. Opinions of this office, like opinions of the courts, should be construed in the light of the question presented for opinion. A "condominium parcel means a unit together with the undivided share in the common elements which is appurtenant to the unit"; a "unit means a part of the condominium property which is subject of private ownership"; and a "unit owner or owner of a unit means the owner of a condominium parcel." ( , F. S.). "A condominium parcel is a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in real pr.operty recognized by law." ( (1), F. S.). (Emphasis supplied.) In 1 Thompson on Real Property, Perm. Ed., 65, 59, it is stated that "at common law 'real property' was deemed coextensive with lands, tenements and hereditaments, corporeal and incorporeal; and in this country, both by statute and common law, the term is generally used for the phrase 'lands, tenements and hereditaments,' but 'real estate' and 'real property' are not strictly convertible terms. Since in its restricted and technical sense real estate signifies every estate or interest one may have in land except a mere chattel interest." To the same effect see also 73 C.J.S. 159, 7, and 42 Am. JUl'. 195, 13. The provision in (1), F. S., that "a condominium parcel is a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in 1'eal property recognized by law," clearly includes lands, tenements and hereditaments, which phrase is generally held to be "lands and interests in lands, corporeal and incorporeal, capable of descending to an heir at law." (Emphasis supplied.) In Mathews v. McCain, 125 Fla. 840, 170 So. 323, text 325, the supreme court of Florida remarked that "the lease' in question was made for a term of five years. It was a chattel real..." It is stated in 73 C.J.S. 161, 7, notes 84 and 85, that the phrase lands, tenements and hereditaments "includes only freehold estates, and does not include leases for years." Numerous cases hold leasehold estates for a term of years as personal property and not real property (First Trust & Deposit Co. v. Syrdelco, Inc., 292 N.Y.S. 206, text 208; Santa Barbara v. Maher, Cal. App., 77 P.2d 306, text 307; Keystone Pipe and Supply Co. v. Crabtree, 174 Okla. 562, 50 P.2d 1086, text 1088; Comer v. Light, 175 Ind. 367, 93 N.E. 660, text 663; Duff v. Keaton, 33 Okla. 92, 224 P. 291, text 295; Kreling v. Walsh, 77 Cal. App. 821, 176 P.2d 965, text 972; Blake v. Shower, 356 Mo. 618, 202 S.W.2d 895, text 897; Sheaffer v. Baeringer, 346 Pa. 32, 29 A.2d 697, text 698; Charter v Maxwell, 132 W. Va. 282, 52 S.E.2d 753, text 759; Offutt Housing Co. v. Sarpy County, 160 Neb. 320, 70 N.W.2d 382, text 390; Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369, text 370; Lincoln Nat'l Bank and Trust Co. v. Nathan; 19 N.E.2d 243, text 247; Guerin v. Blair, Cal. 2d 744, 196 P.2d 651, text 652). There are also numerous cases holding leasehold interests, especially long time leases, to be real property; however, an examination of this line of cases indicates that many of them.

3 338 BIENNIAL REPORT OF THE ATTORNEY GENERAL and maybe most of them, may be based on statutes or constitutional provisions' changing the common law rule in this respect. In 1 Thompson on Real Property, Perm. Ed., 67, 61, it is stated that "at common law an estate less than a freehold, such as estates for years, at will and by sufferance, was personal property, and passed primarily, on the death of the owner, to the executor or administrator. These interests were termed 'chattels real.'" In 42 Am. JUl'. 206, 25, it is stated that a "term for years, while denominated a chattel real, is not, when speaking with legal accuracy, considered real estate, but on the contrary is personal property, whatever might be its duration in years, whether for one or twenty, or ninety-nine years..." In the present state of the Florida authorities, as well as the outside authorities bearing on the question, we doubt that a leasehold interest in real property for a term of years, whatever may be its duration, may be classified as "real property, or any other estate in real property recognized by law" within the purviev ; of (1), F. S. However, we await the determination of the question by the Florida. courts of last resort, and do not here so hold. Until this question is put at rest by the supreme court of Florida we cannot recommend that a condominium be constructed and established upon a leasehold estate for a term of years, however long, and feel that a person doing so will do so at his own risk until the question has been finally determined by the supreme court of Florida. Because of the provision in , F. S., that "a condominium parcel is a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in real property recognized by law," and the provision in , F. S., that "a condominium may be created by recording in the public records of the county wherein the land to be included is located a declaration executed with the formalities of a deed by all persons having title of record to such lands," together with the declaration required by said section, we feel that the legislature contemplated that condominiums be located on real property, the ownership of which "may be in fee simple, or any other estate in real property recognized by law." The problem presented is whether a leasehold estate for a term of years is "real property recognized by law" within the purview of said statutory provisions. In the present state of the Florida law we are not in position to say that it is or is not until the question has been put at rest by the Florida courts. In the. above and foregoing we have dealt with the establishment and creation of the condominium and the title of the person, firm or corporation creating and constructing the same, and not the transfer of rights, titles and interests in the condominium parcels after the creation and establishment of the same. It is provided in (1), F. S., that a "condominium parcel is a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in real property recognized by law." The common elements attached to a condominium parcel pass with it as appurtenances ( , F. S.) whether or not described, and may not be separated therefrom ( , F. S.). A reading and construction of said Ch. 711, F. S., leads to the conclusion that the owners of condominium parcels may encumber their said parcels by mortgage or lien, and such mortgage or lien may be enforced by foreclosure in case of default. The statement in (1), F. S., that "a condominium parcel is a separate parcel of real property, the ownership of which may

4 BIENNIAL REPORT OF THE ATTORNEY GENERAL 339 be in fee simple, or any other estate in real property recognized by law," does not seem to require that the title to a condominium parcel be vested in the owner thereof in fee simple absolute, but such title may be vested in the owner thereof in any other "estate in real property recognized by law." As a general rule estates in real property recognized by law seem to include all interests in real property other than leasehold estates for a term of years, estates at sufferance, estates at will and other interests in real property which would not descend to their heirs of the owner but to the personal representative under the common law. It would seem that the owner of a condominium, held in fee simple, may convey "any other estate in real property recognized by law" less in quantum to his fee simple title, so long as the estate so conveyed is an estate in real property as above discussed. We, therefore, come to the conclusion that the owner in fee of a condominium parcel may sell and transfer "any other estate in real property recognized by law" less than his said fee, and may thereafter sell and transfer any interest retained by him after the transfer of such "other estate in real property recognized by law," so long as the same is transferred subject to such other estate in real property recognized by law previously conveyed by him as aforesaid. (Emphasis supplied.) "Subsequent to the recording of the declaration and while the property remains subject to the declaration (see , F. S.), no lien of any nature shall thereafter arise or be created against the condominium property as a whole except with the unanimous consent of the unit owners. During such period liens may arise or be created only against the several condominium parcels." ( , F. S.). The phrase "subsequent to the recording of the declaration and while the property remains subject to the declaration" seems to relate to the time following the recording of the declaration provided for in , F. S., and not to the time prior to such recording. The provision in said , that during the period of time subsequent to the recording of the said declaration "liens may arise or be created only against the several condominium parcels," clearly indicates that liens on the entire property may not arise or be created after the recording of the declaration above-mentioned, "except with the unanimous consent of the unit owners," and this seems to mean each and everyone.of them, not merely a majority of them. The statement in , F. S., that. "a condominium parcel is a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in real property recognized by law," seems to require that the condominium building or buildings be constructed upon lands held in fee simple or any other estate in real property recognized by law," else the condominium parcel would not be an ownership in fee simple, or any other estate in real property recognized by law." Although some provisions of Ch. 711, F. S., seem to contemplate that condominiums will be constructed on real property held in fee simple, or any other estate in real property recognized by law, there is no express requirement that such property be held free and clear of all liens, including mortgages within the purview of and , F. S. A ground rent appears to be a rent reserved by a landowner, to himself and heirs, out of the lands conveyed to another, which has been deemed a freehold estate by most of the court that has considered the question (see 18A Words and

5 340 BIENNIAL REPORT OF THE ATTORNEY GENERAL Phrases, Perm. Ed., ; 1 Thompson on Real Property, Perm. Ed. 445, 282; 38 C.J.S. 1093, 3; 32 Am. JUl'. 869, 871 and 874, 1039, 1041 and 1044). Most, if not all, of the authorities cited in support of the theory that ground rent is in the nature of a freehold estate appear to have involved ground rents for other than a fixed term of years, so that only title to real property, as distinguished from chattles real, was involved. "A 'ground rent' in the technical sense if the term is a rent reserved by the grantor to himself, and his heirs, out of the lands conveyed in fee simple," such ground rent being itself an estate in real property separate and apart from the lands conveyed. It is stated in 38 C.J.S. 1088, 2, that at "common law a technical ground rent is a rent service and not a rent charge or 'rent seck," and in said 38 C.J.S. 1093, 3, that "the grantee or lessee in the land itself is an interest or estate entirely distinct and of a different nature from that of the owner of the ground rent." (Emphasis supplied.) "In the mutual r~lation of the two estates, the estate which is created by the reservation of the rent is in the nature of an encumbrance; it is a reduction of the value of the land, and for nonpayment of the rent as it grows due, the land may be sold. The rent may be considered in the nature of 'purchase money' charged on the land forever, but the reservation of a technical ground rent does not diminish the estate conveyed." (38 C.J.S. 1093, 3). These authorities indicate that the conveyance of a fee title to real property, by its 'owner, to a grantee, reserving an annual or other ground rent without limitation of time thereon, would create in the grantee a fee simple title or other estate in real property, and in the grantor a ground rent also in the nature of real property. In 38 C.J.S. 1088, 1, we find the following: "Annuity distinguished.-a ground rent considered as rent service 'reserved' is distinguished from the 'grant' of a rent charge or of an annuity." In 3 C.J.S. 1376, 1 (3), it is stated that "at common law an 'annuity' was yearly sum charged on the person of the grantor; when an annual payment was charged on the land, it was at common law a 'rent charge.''' See article on "ground rent" in 30 C.J.S , 1-15, and definition of "ground rent" in 18A Words and Phrases, Perm. Ed., 627 and 628. Although we are inclined to the view that the reservation of a ground rent in perpetuity to a grantor of such lands, vests an estate in real property in both the grantor and grantee, we are unable to find satisfactory authority that a reservation of an annuity for 99 years in the grantor would vest an estate in real property in both the grantor and the grantee; in fact, we are inclined to the view that such a transaction 'Would not vest an estate in real property in the grantor although such an estate would appear to be vested in the grantee, subject to a charge on the lands in the nature of an annuity for 99 years. AGO , of Feb. 4, 1964, having been prepared and issued on a question of taxation under 7, Art. X, of the State Const., and not on the legality of a reservation of rental to a developer of a condominium, has no effect upon such a reservation of rental, as contemplated by the 1st and 2nd questions above-stated and discussed. As the said 1st and 2nd questions are questions going to the construction of Ch. 711, F. S., which was derived from Ch , we feel that said questions vitally involve the legality of condominium titles created and established under and pursuant to said

6 '.< BIENNIAL REPORT OF THE ATTORNEY GENERAL 341 statute, which are by their very nature judicial questions, which should be passed on by the courts of this state and not by its attorney general. Only the said courts may furnish a final authoritative answer to the said questions, needed where titles to real property are involved May 18, 1964 COUNTY OFFICERS AND ORGANIZATIONS ASSIGNMENT OF OFFICE SPACE IN COUNTY COURT HOUSES- 5 AND 11, ART. VIII, 19, ART. VI, STATE CONST. ; 2.01, AND , F. S. To: Sidney F. Dick, County Assessor of Taxes, Brooksville QUESTION: What person, board, commission, or otherwise, has the jurisdiction and duty to assign and reassign office space in county courthouses where such power or duty is not specifically spelled out by applicable local statutes or laws? Neither the present constitution nor the statutes of this state specifically set out the manner of assigning office space in the county courthouses, or the officer or officers upon whom is imposed the duty of making such assignments, as well as reassignments when conditions change, that indicate the necessity of making a reassignment of such office space. Present and past constitutions of Florida, as well as the laws relating to the Territory of Florida, clearly show an intention to divide said territory and state into political divisions known as counties. The division of the Territory and State of Florida into counties has ranged from 2 counties at the time of the acquisition of the Floridas from Spain, to the present 67-county division of the state. "The division of the state into counties had its origin in England, preceding the organization of the kingdom itself, and in the United States counties were first created by the legislatures of the various colonies and subsequently by the state legislatures." (8 Fla. JUl'. 147, 2; 14 Am. JUl'. 185, 2; 20 C.J.S. 757, 2.) "Government by means of counties has existed in England since an early date, and in all of the United States, with a few exceptions, since their settlement." (20 C.J.S. 757, 2). Counties, therefore, appear to be of common law origin. Although counties in Florida are established and their boundaries changed, and evidently abolished, by legislative action (Payne v. Washington County, 25 Fla. 798, 6 So. 881, text same), they are recognized by the State Const., as "legal political divisions of the State; that is, as governmental agencies. They are therefore not of statutory origin." (Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486, text 492). Boards of county commissioners for the several counties of Florida, except for Dade county ( 11, Art. VIII, State Const.) consists of 5 members, one from each of the five county commissioner districts of the county ( 5, Art. VIII, State Const.) 19, Art. VI, State Const. of 1868, provided for the appointment by the governor of boards of cbunty commissioners for the several counties of the state, said 19 having contained the provision that "their duties shall be prescribed by law," Florida constitutions of 1845, 1861 and 1865 merely stated that the legislature was authorized to establish in each county a board of (county) commissioners. Ch. 11, 1845, (approved July 26, 1845) provided for the first boards of county