Unlike certain “unalienable rights” granted to citizens under the United States Constitution, property interests are traditionally understood to have been created by a number of independent sources such as statutes, ordinances, or contracts. The general concept of property itself is construed as the group of rights inhering in the citizen’s relation to the physical thing, such as the right to possess, use and dispose of it.
Modern courts, however, acknowledge that the traditional notion of property interests encompass a variety of other valuable interests, such as intangible and incorporeal rights (e.g., leases, easements, right-of-ways, and mortgages) or other uses which extend well beyond the historic norms of property to establish an entirely legitimate claim to certain additional land use entitlements as well.
What is an “Exaction”?
The term “exaction” is when a condition for development is imposed on a parcel of land which requires the developer to mitigate anticipated negative impacts of the development. An exaction may include some sort of mandatory dedication of real property for impact fee payments, sewer or water utility connection fees, or public use of land for a park, school, or transportation facility or expansion anticipated for certain related infrastructure improvements.
Let’s take these in reverse order.
The Fourth District Court of Appeals of Florida recently affirmed the position that a property owner cannot knowingly ignore an impediment to the title of their property. In Nunes v. Allstate Investment Properties, Inc., (So.3d —, 2011 WL 3107801) the Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually