Shall we promenade? Maybe, if we can make it through

September 18, 2015
By Marcy Shortuse

h-Beachfront Road2
BY MARCY SHORTUSE – If you’re like many of us who live and work on the island, sometimes it’s nice to sit at one of the beach accesses prior to heading back home or to work. You might have been startled from time to time by someone walking out from behind one of the property walls and wondered, “Where did they come from?” The answer is simple – they were promenading.
If you didn’t realize you were allowed to do that, you are. From Fourth Street to First Street, the land along the seawall has been publicly owned since a deal was struck for one dollar in April of 1927.
In the olden days it was a social event to promenade. You had dinner, maybe a few drinks, then you headed down to the beach in your floor-length dress with your frilly parasol and … well, you promenaded.
However, it’s not as easy as you might think to navigate those few blocks now. Some homeowners have plants that have overgrown the “promenade,” as it is called, so navigation of the path is not as easy as it once was.
According to records obtained from the Boca Grande Historical Society, the original 1897 Gilchrist plat shows the six-block area of what is today first to third Streets, and Gilchrist Avenue to Palm Avenue.
Years later another land ownership document, this one from April 12, 1927, shows an indenture between the Boca Grande Corporation and Boca Grande Associates, Inc. This document reads:
“The party of the first part (Boca Grande Corporation), for and in consideration of certain good and valuable considerations and the sum of one dollar, lawful money of the United States of America, to it paid by the party of the second part (Boca Grande Associates, Inc.) … the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey unto the said party of the second part and to its successors and assigns forever, all the right, title and interest of the party of the first part in and to that certain piece or parcel of land situate, laying and being at Boca Grande, in the county of Lee … bounded northerly by a line in continuation westerly to the Gulf of Mexico of the southerly line of Fourth Street … easterly by line coinciding with the westerly line of Blocks 17, 1 and 2 and the westerly ends of Third, Second and First Streets, as shown on said map; on the south by the southerly line of First Street …”
Paragraph two: Subject also as to the walk which now extends north and south along the easterly side of said premises in front of blocks 17, 1 and 2 and said Third, Second and First Streets … to the use thereof by owners of lots in Boca Grande, members of their families and guests …”
What that means is that the people of the community of Boca Grande have the right to, as the document states, “bath and promenade,” and that “no fences or other structures of any kind shall be built …” on the walkway along the beach. It doesn’t specifically name unruly bushes, though.
On an island that features multi-million beachfront homes, one could logically think that this agreement might have come into question a time or two. And one would be right.
In 1988 a letter between a client and his attorney (names redacted for protection of identity) addresses this very situation.
It states, “… the deed reveals that the area of land which lies between the western property lines of Blocks 17, 1 and 2 going westerly to the Gulf of Mexico was deeded to the Boca Grande Associates in April of 1927. Note that on page 2, paragraph 2 of the Deed, the subject walkway has been reserved to the use by the owners’ of lots in Boca Grande and the members of their families and their guests.
As a result, the aforementioned people have a right pursuant to a valid conveyance to utilize the walkway area and additionally, even assuming that there were some way to invalidate the deed, it is my opinion that these same people have a relatively strong argument concerning use of the walkway via a prescriptive right.
The end result is that there does not appear to be a no legal mechanism by which you can close down the walkway area to pedestrian traffic.”
So, as you can see, your right to promenade has been preserved. If you choose to promenade and your feel the walkway has been impeded, a call to Lee County Code Enforcement at (239) 533-8895 might be in order. Because forever still means forever … even in Boca Grande.