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Real Estate Law | City rights of way along my canal?

By ERIC P. FEICHTHALER - Real Estate Law | Feb 9, 2024

Eric P. Feichthaler

Dear Mr. Feichthaler,

I live in the Yacht Club area and bought five years ago. Unfortunately, I made the decision to obtain an adjustable rate mortgage at the time, which saved me .25% on the rate. So, I did great for five years, but now I have to refinance. With rates at 3% long gone, I was not looking forward to this.

Now, the bank is telling me I have a problem with title. They are saying we don’t actually own part of the property in the back that borders the canal, and they won’t refinance without this being fixed. I don’t understand how this is even possible, who could own a three-foot strip of property between us and my dock and lift? And if it is possible, what do I do?

Steven N.

Dear Steven,

In what should be a very dull world of real estate law, Cape Coral seems to bring drama like no other city.

What you have described is, unfortunately, not unique to your property. This issue is not the fault of the city, rather the initial developer, Gulf American. In prior columns, I discussed the concept of “right of way,” which is an area of property the city controls and can use for municipal purposes. Typically, the primary purpose for right of way is for roads. However, in Cape Coral, we have hundreds of miles of a different kind of right of way — canals.

Typically, these canal rights of way will meet up with your property line and seawall, just like they do in your front yard for the road. However, in certain areas of the city, notably the older parts of the city, the canal was not excavated to the property line. This has left several feet of land between the back of your property and the canal itself that is also city right of way. A bank may object to this, in that your property is not technically waterfront, and the assets like your dock and seawall may not be your property.

Unfortunately, the answer on what to do is somewhat costly. An application must be made to vacate this unexcavated canal right-of-way, which will require City Council approval. This application must include surveys, approval letters from all utility companies, advertising costs and other items. The process will take months, but should result in a successful transfer.

Before proceeding, it is highly advisable you meet with an attorney or with city staff to discuss what is necessary. Attempting to proceed without that guidance could cost you a lot of wasted time and money. In the meantime, you are not prohibited from using your dock and canal, you will simply traverse a few feet of city right of way to reach it.

Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Cape Coral to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He can be reached at eric@capecoralattorney.com or 239-542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.

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