STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD E. KIMBALL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1162

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on February 4, 1982, in Fort Lauderdale, Florida. The parties elected to exercise their right to submit proposed findings of fact and conclusions of law, and were allotted 21 days after the filing of the transcript to do so. In return, the parties waived the 30 day time requirement for issuance of this Recommended Order. The transcript was filed on February 24, 1982, but to date no proposed findings and conclusions have been submitted by either party.

APPEARANCES

For Petitioner: Richard E. Kimball, in pro per

18930 Southwest 312 Street

Homestead, Florida 33030

For Respondent: Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

The Petitioner filed a claim with the Department of Transportation for relocation benefits as a result of the taking of property for road building purposes by the Department. The Petitioner claims to be a tenant of the property which was acquired by DOT and, as such, he claims entitlement to relocation assistance payments. DOT denied the Petitioner's claim because it determined that the Petitioner was not in lawful possession of the subject property. Thus, the issue is whether the Petitioner's occupancy of the property was lawful; if so, he is entitled to the relocation benefits he claims.

The Petitioner testified in his own behalf and offered two exhibits which were received in evidence. The Respondent presented the testimony of its local right-of-way specialist, together with six exhibits which were received in evidence, in support of its denial of the Petitioner's claim.

FINDINGS OF FACT

1. On March 21, 1979, the Department of Transportation began negotiations to acquire real property in Dade County, Florida, for a right-of-way in connection with the expansion of I-95. In October of 1979, representatives of DOT found the Petitioner's trailer on land located on the right-of way. This trailer was not being used as a residence, but was used for storage of feed for horses being raised by the Petitioner. The Petitioner claimed to be occupying the property pursuant to a lease from the owner. The representatives of DOT advised the Petitioner that he must move the trailer off the property, but that he could file a claim for relocation benefits.

   
   

2. Subsequently, the Petitioner presented DOT with a claim for the expenses of moving the trailer off the subject property. The Petitioner also submitted a lease dated May 1, 1979, from Henry Milander to the Petitioner, leasing the subject property for a term of two years, in support of his claim to be in lawful possession. This lease, however, was not executed by Henry Milander, but by Michael Manin, whose signature was neither witnessed nor notarized. The Petitioner subsequently submitted a power of attorney executed by Henry Milander to Michael Manin, dated approximately three years prior to the date of the Petitioner's lease. This power of attorney was witnessed, but was not notarized. Neither the lease nor the power of attorney had been recorded on the public records of Dade County.

   
   

3. The DOT representatives conducted a title search, and found that the record owner of the subject property was Ruth Milander Tabrah, as trustee of a trust established by Henry Milander in 1955. This trust had not been terminated, and was in existence during the time periods relevant to this proceeding.

   
   

4. Thereupon, the DOT advised the Petitioner that his claim for relocation benefits had been disallowed because his occupancy of the subject property was "inconsistent with the rights of the true owner". The Petitioner's request for a formal administrative hearing challenges the determination of DOT that he is not eligible for relocation benefits.

   
   

   CONCLUSIONS OF LAW

   
   

5. By Section 14-14.05, Florida Administrative Code, the Department of Transportation manual of right-of-way operating procedures is expressly incorporated into the rules of the Department. Section 4.1.1.R. of this right- of-way manual defines the term "tenant" as an individual or family who rents, or is temporarily in lawful possession of property being acquired for right-of-way purposes. If the Petitioner was in lawful possession of the property which is the subject of this proceeding, he is entitled to relocation benefits; if not, his claim must be denied.

6. Section 695.01(1), Florida Statutes, provides: "No conveyance, transfer or mortgage of

   real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without no- tice, unless the same be recorded according to law; nor shall any such instrument made

   or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded be- fore the accruing of the right of such creditor or subsequent purchaser."

   
   

   The Petitioner's claim is not effectual against the DOT because neither the lease of the Petitioner nor the owner of attorney under which this lease was executed were recorded, as required.

   
   

7. Section 695.03(1), Florida Statutes, provides that an instrument affecting real property must be acknowledged before a Notary Public in order to be recorded on the public records. Neither the lease to the Petitioner, nor the power of attorney, were notarized. Thus, neither of these instruments were entitled to be recorded.

   
   

8. Moreover, none of the instruments under which the Petitioner claims to be in lawful possession of the subject property were executed by the record owner, and there is no evidence demonstrating that the Petitioner had any authority from the record owner to occupy this property. As a result, the Petitioner was not in lawful possession, and he, is not eligible for relocation benefits.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of Richard E. Kimball for relocation assistance

payments be denied.

THIS RECOMMENDED ORDER entered on this 15th day of April, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982.

COPIES FURNISHED:

Richard E. Kimball 18930 S.W. 312 Street

Homestead, Florida 33030

Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 81-001162

Orders for Case No: 81-001162