Town gives Windermere boathouse owners 35 days to vacate structures

Owners of the five boathouses in Windermere’s Palmer Park have until July 11 to move their boats and any other belongings out of the century-old structures, according to a June 7 letter sent by the law firm GrayRobinson on behalf of the town. Property left in the structures after July 11 will be “deemed abandoned,” said the letter obtained by VoxPopuli.

The letter follows the Windermere Town Council’s March 8 decision to terminate the boathouse lease agreements.

“It’s part of the lease agreement that after termination they are allowed 30 days to remove items,” Town Manager Robert Smith said in an email to VoxPopuli.

There’s no immediate plan for what to do with the boathouses after July 11,  according to Smith’s email. Initially, he noted, “there will be a cooling off period for HPB [the Historical Preservation Board] and town council to ultimately decide what to do, but the options considered so far were to rehab them and leave vacant (as historical structures) or rehab them and utilize a lottery system for other residents to possibly lease them out for a specified term. They would not be sold, auctioned off or demo’ed."

As for what the town may do with any “abandoned” property, Smith said, “We are hoping they will comply with the agreement they signed. If anything is left over, we will we cross that bridge when/if we get to it.”

Built around 1910, the boathouses, listed on the town’s roster of historic places, have been at the center of a tug of war between various owners and members of town council over the last few decades. The latest skirmish centers on the town’s lease agreement, originally signed in 1985, extended in 2001 and expired in 2021. The boathouse owners have been on month-to-month leases since then. It’s those leases that the town council voted to terminate in March.

The notice to clear out followed a May 31 letter sent by Fishback Dominick attorney Kurt Ardaman, who is representing the boathouse owners, to the town council. That letter, also obtained by VoxPopuli, requests that the town “reconsider its intended taking and actions related to the boathouses,” because Ardaman’s clients “undisputedly” own the structures.

The fact that the boathouse owners own their boathouses is not really in dispute. That’s even stated in the lease: “Lessee owns a boat house…”

The lease is for the narrow strip of grass between the road and the water by which boathouse owners access their boathouses. (More than one boathouse owner has pointed out the absurdity of having to pay to walk across public land that others can walk on for free.) But that’s not the sticking point. Section 12 of the lease states that at the end of the lease, the boathouse owners will “surrender ownership and possession of the premises.” The town is coming to collect.

That’s not sitting well with the newest owners, who bought their Windermere homes within the last few years, in part, because of the boathouses. They paid a premium for the property and spent time repairing them. None of the boathouse owners we contacted for this story would comment because of potential litigation. However, in April, several told VoxPopuli that they were not keen on ceding what they consider private property to the town.

Ardaman claims the town had no standing to enter into that 1985 lease. His argument rests on the 1856 Riparian Rights Act, and is bolstered by the Butler Act of 1921, which “vests full title to submerged lands upon construction of a permanent improvement,” according to Ardaman’s letter. “The act of building the boathouses …gave the owner of each boathouse title to the lake bottom underneath.”

Both the Riparian Rights Act and the Butler Act predate the establishment of the Town of Windermere’s charter in 1925.

Ardaman’s letter also states that since the boathouses were constructed in 1910 — 13 years before the town was platted — the shore rights (legally known as “littoral rights”) “associated with the boathouses had already vested in our clients’ predecessors in title.”

Ardaman told VoxPopuli that as of June 9, he had received no response to his letter from any town official.

The town’s argument remains essentially that “a deal’s a deal,” and it wants the boathouse owners to live up to the agreement. According to a  Nov. 4, 2020, memorandum from GrayRobinson to the town council:

“…the parties negotiated an end date for the Lease Agreements – February 28, 2021….There is likely little legal recourse for a boathouse lessee, especially since the Lease Agreements are negotiated contracts and the language and requirements in the Lease Agreements are clear.