There’s not much to the boathouses. Built between 1910 and 1915, with a roof and three sides — the fourth is open to the water — they resemble nothing so much as car ports for small boats. But they offer coveted access to Lake Butler. And in 2022, a boathouse paired with a home could add as much as $250,000 to a home’s value, according to Windermere realtor Judy Black. 

This lawsuit is the latest iteration of a fight that’s been going on in Windermere since 1986 when the town attempted to wrest the boathouses from the then-owners with the aim of tearing down what some considered an “eyesore.” That dispute resulted in a lease that was intended to end in 2001. In the intervening years, the boathouses were placed on the Local Register of Historic Places. The lease was extended to 2011 and then again to 2021. Another 20-year lease was negotiated with the provision that the boathouses would be turned over to the town at that lease’s end, but the town council narrowly voted it down. The boathouse owners, who at that point had been on month-to-month leases, found them terminated in March 2022. The town gave them 60 days to vacate. 

But by this time some of the boathouses had new owners who had paid quite a bit of money for the structures and sank more into their restoration and remodeling. One boathouse had been in the same family for more than 60 years. So when the owners received eviction notices, they weren't just giving them up. They responded by sending trespass warnings to town officials and staff and dug in for a fight. 

The town initially budgeted $85,000 for legal fees once it filed its lawsuit in July 2022. Three years in, the town has spent at least $463,227 in its pursuit of the boathouses.

Getting to the bottom of it

Attorneys on both sides are focused on the bottom of the lagoon beneath the boathouses.  

According to court documents, Windermere maintains it is legally allowed to evict the owners of the boathouses because the State of Florida owns that portion of the lake bottom.

The boathouse owners say that’s not so and got the Florida Department of Environment Protection (FDEP) to back them up. 

Richard Malloy, senior program analyst in the FDEP's Division of State Lands, confirmed the state does not own the bottom of the lagoon beneath the boathouses. 

In a letter dated Jan. 29, 2024, Malloy wrote, “For the BOT [Board of Trustees of the Internal Improvement Trust Fund of the State of Florida] to own these lands the waters had to be navigable at statehood. … From my research of historic aerials and surveys, this cove has been hydrologically connected to Lake Butler, but there wasn’t a natural navigable connection. Therefore this cove does not meet its own navigability test for sovereignty. … it is very apparent that the cove is a separate waterbody from Lake Butler.”  Malloy went on to say that the BOT “would not assert sovereign ownership” over the cove or lagoon area.  

In other words, the state owns Lake Butler, but not the lagoon, which is a separate, private body of water.

Malloy reiterated his opinion during his March deposition when defense attorney John T. Conner asked him if the lagoon was owned by the state: “No, I don’t believe it is,” he replied. 

Rocky L. Carson, vice president and assistant director of survey at Donald W. McIntosh Associates, Inc., with 37 years as a licensed land surveyor and mapper, also supported the assertion that the boathouses were built on private land. He submitted a sworn affidavit in which he wrote, “I observed that the five boathouses at issue in this case are situated in the non-sovereign, privately owned lagoon area lands.” 

Carson noted that the town did not produce a deed showing ownership of the lagoon but that public records showed the Windermere Improvement Company, which owned the Windermere plat, recorded deeds of property extending into the lagoon on Jan. 3, 1938 and Dec. 15, 1956. 

“Such deeds show knowledge by the original owners and dedicators of the Plat of Windermere that the lagoon is privately owned and was intended to remain in private ownership,” Carson wrote in his affidavit. 

Without any claim of ownership, defense attorneys state that Windermere has no standing to evict the boathouse owners from the boathouses.

However, the town still claims that it does. In its May disclosure of expert witnesses, attorneys for the town argue that their expert witnesses will rebut those assertions, but that regardless of who owns the lagoon, there’s still the matter of the 2021 lease. Ownership rights, town attorneys state, are “immaterial to the single determination before the court on eviction of each tenant under the leases signed.” 

If Netcher grants the motion, a judgment will be ordered and the case will conclude, although Windermere can still appeal. If the motion is denied, the case will go to trial, but it’s unclear if trial will take place next month or in 2026.