Casino Investment, Inc. v. Palm Springs Mile Associates, Ltd., 3D12-2257 (Fla. 3d DCA 2013):
Casino appealed a partial final summary judgment entered in favor of Palm Springs which permanently enjoined Casino from constructing a building on its own property. In 1993, Palm Springs created and recorded a Declaration of Easement covering their entire Shopping Center property. In 1999, Casino acquired title to a parcel contained within the Shopping Center. In 2007, Casino sought to construct a building on the north end of its property.
Palm Springs argued that Casino’s proposed construction would violate the Impediment Provision of the Easement because it would constitute an “obstruction” which would “obstruct or impede vehicular and pedestrian traffic between the two parcels of land.” Casino contended that this is an access easement and the focus of the Impediment Provision is access between Casino’s property and Palm Springs’ property. Therefore, the provision does not apply to construction that occurs solely on Casino’s property when that construction leaves access open from one end of the Shopping Center to the other.
The Third District agreed that Casino’s proposed construction would have no effect upon ingress and egress. The proposed construction would eliminate only a parking lane located entirely on Casino’s property and the access points for the two properties remain the same. The trial court erred because the proposed construction would not “obstruct or impede vehicular and pedestrian traffic between the two parcels of land.”
Additionally, Palm Springs contended that the proposed construction violates the Parking Provision because it would eliminate parking spaces on Casino’s property, which the Parking Provision requires “be available for use by the parties.” Casino argued that the Parking Provision does not serve as a bar to its proposed construction because it does not require Casino to maintain a particular number of parking spaces on its property, but rather, grants equal access to all shopping center customers and tenants of whatever parking spaces it does maintain.
The Third District determined the Parking Provision gives Palm Springs the right to use the parking areas and sidewalks of Casino’s property in common with Casino. Use of the phrase “in common with” makes clear that its intended effect was to allow the parties equal access to the parking areas located on each party’s respective property. The Easement makes no mention of any requirement that either party maintain a certain number of parking spaces or a certain parking configuration. Again, the trial court erred in finding that the proposed construction was barred. The clear and unambiguous provisions of the Easement do not expressly bar Casino’s proposed construction.