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A ‘quiet title’ claim may help resolve property issue

September 28, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

We purchased our property in the Yacht Club area about 10 years ago, and all went well. Or so I thought! I tried to refinance last week, and the title report came back showing that there is a small portion of property that was not transferred to us when we purchased. Apparently, the city owned a 3-foot strip at the rear of our property, and the city deeded this to the original owners. The owners then deeded us only the lots, but not this strip. The result is, our property stops 3 feet from the water! What can we do?

-Shannon C.

Dear Shannon,

One of Cape Coral's greatest assets is our platted lots. They generally bring consistency, and provide buyers a good idea of exactly what they are buying. Unfortunate-ly, being a pre-platted city also has its negatives. In a few situations, the plat did not match the real conditions on property, which resulted in a few lots being short of the canal. In some instances, like yours, the city deeded the land to the owner to provide uniformity. It is likely the Realtors and title company involved had no idea about this strip, nor would they unless a survey was ordered by you when you purchased. If you did order a survey, you would likely have a claim against the title insurance underwriter and/or agent.

However, many buyers of Cape Coral properties do not obtain a survey. If this is the case here, you may not have a valid claim against anyone, especially if the contract did not specify this strip was included. Regardless of blame or responsibility, the next step is to determine how to resolve the issue. The path of least resistance is to obtain a deed from the original sellers, if they can be found. I'm sure they didn't mean to leave this portion of the property out of the transfer. If they cannot be found, a legal action called "quiet title" may be in order. This procedure would have a judge order the property be transferred to you after a legal proceeding. I highly recommend you seek professional advice to resolve this issue.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida 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, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 17 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

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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