Tatum v. Dance

• Decision Date: 14 August 1992
• Docket Number: No. 91-1098,91-1098
• Citation: 605 So.2d 110
• Parties: 17 Fla. L. Week. D1904 Ray TATUM, Appellant, v. Robert M. DANCE, Appellee.
• Court: Florida District Court of Appeals

Page 110

605 So.2d 110

17 Fla. L. Week. D1904

Ray TATUM, Appellant, v. Robert M. DANCE, Appellee.

No. 91-1098.

District Court of Appeal of Florida,

Fifth

District.

Aug. 14, 1992.

Rehearing Denied Oct. 1, 1992.

John V. Baum of Panico & Baum, Maitland, for appellant.

John F. Bennett of Fishback, Dominick, Bennett, Stepter & Ardaman, Orlando, for appellee.

GRIFFIN, Judge.

In this foreclosure action, the mortgagee, Ray Tatum, has appealed the order of the lower court holding that Robert Dance, the mortgagor, is entitled to an irrevocable license for drainage onto the mortgaged property. We affirm.

In 1975, the southern portion (parcel A) of a tract of unimproved land in Seminole County was bought by Dance from Broleman and Rapp to construct an automobile dealership. A borrow pit was located on the remaining adjacent portion (parcel B) of the tract owned by Broleman and Rapp. Dance testified that he had bought the property as a "package deal." Rapp, who was also an architect, had offered him both the design of the dealership and the land on which to build it. The design produced by Rapp provided for drainage into the borrow pit on parcel B. In 1976, Dance built the dealership using Rapp's design. As built, almost all of parcel A was paved, rendering it incapable of on-site drainage. Surface water flowed into a central drain in the pavement through culverts (constructed by Dance) to the borrow pit on parcel B. Dance never obtained a drainage easement.

In 1984, Broleman and Rapp sold parcel B to Tatum. In 1987, Tatum sold parcel B to Dance, taking back a purchase money note and mortgage. Dance ultimately defaulted on the note and Tatum brought the foreclosure proceeding below. Dance sought an order from the trial court recognizing his right to drainage onto parcel B.

Evidence was presented by Dance that his purchase of parcel A, construction of the car dealership and installation of its drainage system leading to the borrow pit on parcel B were all done in reliance on an oral drainage license from Rapp. Dance established that approximately $88,000 would be required to redesign and construct drainage on his own parcel. After hearing the evidence, the lower court held the oral drainage license given by Rapp to Dance became irrevocable. The trial court further held that because Dance had continually used the drainage system and his use of it would have been apparent to Tatum by reasonable inspection of parcel B, Tatum was also bound by the irrevocable license. Finally, the court found: "Since a license is a personal right to use land rather than interest in land, the doctrine of merger of estates and land does not apply and, furthermore, since this license arose through the application of principles of equity, the equities command that this irrevocable license survive the foreclosure of [Tatum's] mortgage."

In finding an irrevocable license in favor of Dance, the trial court relied upon our opinion in Dotson v. Wolfe, 391 So.2d 757 (Fla. 5th DCA 1980). In Dotson we discussed the analytical difficulties inherent in the distinction between an easement and a license, and said:

A license is distinguished from an easement in that a license is merely a personal right to use the property of another for a specific purpose, is not an interest in the land and, therefore, may not be assigned or conveyed. Burdine v. Sewell, supra [92 Fla. 375, 109 So. 648 (Fla.1926) ]; Jenkins v. Lykes, 19 Fla. 148, 45 Am.R. 19 (1882); The Florida Bar, Florida Real Property Practice I Sec. 12.14 (1965); 1A Thompson on Real Property Secs. 216, 217 (1980). As a personal right, a license usually may be revoked at will by the licensor. The Florida Bar, Florida Real Property Practice I Sec. 12.14 (1965); 1 Boyer, Florida Real Estate Transactions Sec. 23.08 (1979).

There is a split among the jurisdictions as to whether a license may ever become irrevocable. Rerick v. Kern, 14 Serg. & R (Pa.) 267, 16 Am.Dec. 497 (1826); 1A Thompson on Real Property Sec. 225 (1980). Florida has sided with those jurisdictions which have allowed a license to become irrevocable to escape an inequitable situation which might be created by the requirements of the statute of frauds, or where money has been spent in reliance on a license. Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759 (1933) [sic]; Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98 (1914); The Florida Bar, Florida Real Property Practice I Sec. 12.14 (1965).

Id. at 759.

In the Albrecht case, which we cited in Dotson, the Florida Supreme Court adopted the majority view that a parol license, without consideration, to construct a permanent structure upon the land of the licensor for the benefit of the licensee cannot be revoked at the pleasure of the licensor where the licensee, in reliance on the license, has expended substantial sums on improvements. Equity will estop the licensor from exercising his right to revoke the license. Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98, 100 (1914). See generally 3 Boyer, Florida Real Estate Transactions Secs. 110.31[b][i], -.32 (1992). Further, a subsequent vendee having notice of the licensee's use at the time of purchase takes the land burdened with the license, and has no right to object to its presence or to sue for or recover damages therefor. Albrecht, 65 So. at 100. However, the Albrecht court further observed that such an irrevocable license "becomes an easement". Id.

The threshold question we must consider is whether Dotson, Dorsey and Albrecht were overruled sub silentio in Tortoise Island Communities, Inc. v. Moorings Ass'n, Inc., 489 So.2d 22 (Fla.1986). Tortoise Island involved a claimed implied easement to use an access canal based upon representations made to purchasers of lots at the time of the sale; it did not involve the expenditure of funds or construction of improvements in reliance upon a license. The Tortoise Island court ruled, in essence, that implied easements can arise only from (1) an implication arising from the language in a duly executed writing or (2) a factual situation giving rise to the creation of a way of necessity as a matter of law. This holding does not eliminate irrevocable licenses from Florida jurisprudence, however. The irrevocable license cases were nowhere mentioned in Tortoise Island. At most, Tortoise Island precludes the creation of an implied easement out of an irrevocable license. ¹

Although an irrevocable license may be the "functional equivalent" of an easement by estoppel, they are not the same thing. ² Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land, paragraph 10.06 at 10-18 (1988). They are different in origin, scope and function. ³ The equitable concerns that led to the Dorsey, Albrecht and Dotson decisions are firmly rooted in Florida law and there is no reason to assume this remedy was withdrawn by implication in Tortoise Island. The "irrevocable license" is a distinct remedial concept recognized historically and currently in many jurisdictions, which, like Florida, provide no statutory remedy. ⁴ It only arises under certain very narrow circumstances and should be applied only to the extent required to prevent inequity. The duration of irrevocable licenses should be limited to the time necessary to protect the reliance investment of the licensee. See Bruce & Ely, supra paragraph 10.06[b] at 10-23 and cases cited therein; V Restatement of Property Sec. 519(4), cmt. e (1944); Eliopulos v. Kondo Farms, Inc., 102 Idaho 915, 643 P.2d 1085 (Ct.App.1982). The irrevocable license gives equity a broad range of remedies short of creating an easement servitude in real property.

In this case, the licensor designed and permitted construction of the drainage system for Dance's car dealership onto his adjacent parcel. The configuration and construction of the entire dealership depended on this drainage design. This case does, therefore, represent the very unusual circumstance where a court sitting in equity could appropriately conclude that Dance's drainage license is irrevocable even as against the vendee of the licensor. ⁵ Although we might not agree that equity required an irrevocable license as broad as the one fashioned by the trial court, we cannot conclude the court abused its equitable powers, save in one respect. The judgment provides that the license inures not only to the benefit of Dance but to his successors in interest. A license is a personal right, however, and cannot be assigned or conveyed. Although a license may be enforced against a successor of the licensor for equitable reasons, as referenced above, there is no similar basis to allow the licensee to transfer the license. Cf. Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 39, 149 So. 759, 765 (1932). Accordingly, we affirm the order of the lower court, in part, but reverse in part and remand with instructions to enter a judgment consistent with this opinion. We also certify the following question, which we deem to be of great public importance, to the Florida Supreme Court:

WHETHER, IN LIGHT OF MOORINGS ASSOCIATION, INC. V. TORTOISE ISLAND COMMUNITIES, 460 SO.2D 961 (FLA. 5TH DCA 1984), DECISION QUASHED, 489 SO.2D 22 (FLA.1986) (DISSENT APPROVED), THE STATEMENT IN ALBRECHT V. DRAKE LUMBER CO., 67 FLA. 310, 65 SO. 98 (1914), TO THE EFFECT THAT AN IRREVOCABLE LICENSE BECOMES AN EASEMENT BASED ON EQUITABLE ESTOPPEL, MEANS THAT AN IRREVOCABLE LICENSE CAN NO LONGER EXIST IN FLORIDA.

AFFIRMED in part; REVERSED in part; REMANDED.

COBB J., concurs.

W. SHARP, J., concurs specially with opinion.

W. SHARP, Judge, concurring specially.

I disagree with the view expressed in the majority opinion that Tortoise Island Communities, Inc. v. Moorings Association, Inc., 489 So.2d 22 (Fla.1986), "ruled, in essence, that implied easements can arise only from 1) an implication arising from the language in a duly executed writing, or 2) a factual situation giving rise to the creation of a way of...