
    Jonathan LEWIS, Appellant, v. S & T ANCHORAGE, INC., Appellee.
    No. 92-224.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1993.
    Rehearing Denied May 4, 1993.
    Weil, Gotshal & Manges and Bruce J. Berman and Jamie A. Cole, Miami, for appellant.
    Thomson, Muraro, Razook & Hart and Steven W. Davis and Scott A. Browdy, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARKDULL and FERGUSON, JJ.
   PER CURIAM.

Jonathan Lewis appeals from an order finding that he has no property rights to a dock area at his residential subdivision, The Anchorage. We reverse.

The first time these parties were before us, S & T Anchorage argued that the Anchorage Homeowner’s Association’s settlement and voluntary dismissal of its claim to use the dock area, that is part of the common area of the development, extinguished Lewis’s individual rights to the area. We held that the terms of the Declaration were internally inconsistent, “creating a triable issue of fact whether Jonathan Lewis has individual rights separate and distinct from his derivative rights as a member of the Association,” and remanded the case for a determination of that issue. S & T Anchorage, Inc. v. Lewis, 575 So.2d 696 (Fla. 3d DCA1991).

On remand, the trial court ruled that under the Declaration, Lewis does have an individual right to assert his claim for an easement to use the dock area for passive purposes such as sunning, picnicking, and viewing Biscayne Bay. Nevertheless, it denied Lewis the requested relief, ruling that the Declaration granted no common dock area. We hold that in so ruling, the trial court disregarded the express unambiguous provision of the Declaration which states, “the Property contains a dock area which is part of the common area of the Property.”

At the outset of the hearing on remand, counsel for Anchorage stipulated to the existence of a waterfront common area which included the dock area and harbor.

THE COURT: You’re saying that the Declaration defines the property as shown on the plat and defines common area as the plat less the lots?
MR. THOMSON: That’s correct, Your Honor.
THE COURT: So the common area, by subtracting one from the other, in this area that you just pointed out?
MR. THOMSON: Essentially it’s the roads.
THE COURT: The road and the dock area?
MR. THOMSON: Yes, Your Honor.
THE COURT: You concede those to be the common areas?
MR. THOMSON: Yeah, the dock area and the harbor, yeah.
THE COURT: So you concede those to be common areas?
MR. THOMSON: Yes, That’s what the Declaration says; property contains a dock area which is part of the common area of the property. That’s the first line of Article 8.

(Emphasis supplied). Mr. Thomson’s concession was consistent not only with the plain language of the Declaration, and with Anchorage’s position taken in the prior appeal, but also with the prior opinion of this court which recognized “The Declaration defined the common areas of the subdivision to include the dock area....” Lewis, 575 So.2d at 697.

Although the Declaration clearly stated that the dock area was part of the common area, neither the Declaration nor the plat (recorded years earlier) showed its physical boundaries. At trial, Lewis therefore sought to prove not the existence of a common dock area, but rather to define the physical boundaries of the common area. The evidence offered by Lewis to demonstrate the boundaries included sales materials, prepared contemporaneously with the Declaration and other documents prepared by or at the direction of Anchorage, portraying a waterfront peninsula with an access route four-feet in width. See Easton v. Appier, 548 So.2d 691 (Fla. 3d DCA1989) (extent of easement implied by a writing depends on the intent of the parties at the time of creation). The evidence presented by Lewis clearly demonstrated the grant- or’s intention, at the time of the recording of the Declaration, that the common “dock area” was the waterfront peninsula depicted in the brochures.

Further, in light of Anchorage's position in the prior appeal, recognizing the existence of common waterfront rights, and counsel’s stipulation on remand that there is a dock area which is part of the common area of the Anchorage subdivision, the court departed from established law in concluding that there was no common dock area. See Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971) (“A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.”); New York Cent. Mut. Fire Ins. Co. v. Diaks, 69 So.2d 786, 787 (Fla.1954); Troup v. Bird, 53 So.2d 717 (Fla.1951). Lewis is entitled, as a matter of law, to a judgment affording him the right to use, and have reasonable access to, the common dock area.

On remand the court is to fix the boundaries of the common dock area consistent with the evidence presented at previous hearings, along with a four-foot wide access route to the dock which is least intrusive to other lots on the waterfront peninsula.

Reversed and remanded for further consistent proceedings.

SCHWARTZ, C.J., and FERGUSON, J., concur.

BARKDULL, Judge,

dissenting.

Following this court’s opinion of S & T Anchorage, Inc. v. Lewis, 575 So.2d 696 (Fla. 3d DCA1991) the matter recurred in the trial court and resulted in a final judgment for S & T Anchorage, Inc. which reads as follows:

A SUMMARY JUDGMENT entered by this court was reversed upon a determination that a genuine issue of material fact existed as to whether the Counter-Claimant, Jonathan Lewis, has a right to assert an individual claim against S & T Anchorage, Inc., for waterfront rights in the Anchorage subdivision, separate and distinct from his derivative right as a member of the Anchorage Owners Association. The cause was remanded for trial, and was tried before the court.
On the evidence presented, the court finds that under the provisions of the Declaration Lewis does have an individual right to assert his claim; the court further finds, however, that he has failed to establish entitlement to the claimed waterfront rights.
Lewis bases his claim for waterfront rights upon the first sentence of Article 8 of the Declaration:
‘The Property contains a dock area which is part of the Common Area of the Property.’
The provisions of Article 8 which follow this first sentence relate to procedures for purchase and maintenance of dock slips and dock spaces.
In Count I of his counterclaim Lewis seeks judgment requiring the conveyance by S & T to the Association of the “common area” as defined in the Declaration, including a “waterfront peninsular” (sic); in Count II he seeks an easement by necessity to gain access to the waterfront. The evidence reflects the intent and understanding of the parties at the time of Lewis’ purchase of his property to be that it would be only upon Lewis’ obtaining a boat slip that he would obtain “waterfront right”, i.e.: access to the dock area.
More particularly, the understanding was that the dock slips would first be offered to the owners of lot 8 and lot 9; those docks slips not purchased would then be offered to the other lot owners in order of the date of purchase of the lot; in that event, access to the dock area would then provided. In making this determination, the court has considered the provisions of Article 8 in its entirety, the testimony of the parties and witnesses and the conduct of the parties.
The purpose of Article 8 was not to create unequivocal waterfront access, but rather to establish a mechanism for Association maintenance of a dock area and dock slips for those who do own the boat slips adjacent to Lots 8 and 9 (unless assigned by the Association to the dock slip owners).
Article 8 does not establish an individual property right in a waterfront peninsula and access thereto as sought by Lewis but rather creates a maintenance vehicle for the ultimate owners of the dock slips. WHEREFORE, IT IS ADJUDGED that Jonathan Lewis, Counter-Plaintiff, take nothing by this action and that S & T Anchorage, Inc., Counter-Defendant, go hence without day. Ruling is reserved for assessment of costs.

On appeal the appellant contends that he is entitled to an absolute right to an easement to the dockage area, even though he admits he has not purchased a boat slip, contending that this court held such as a matter of law in the prior opinion. I find on examination of the briefs in the original cause that one of the issues was Lewis’ right to bring the action individually, rather than the condominium association. The prior opinion found that he had standing, but did not determine his rights. I would affirm the trial court’s final judgment. Lewis purchased a landlocked lot, recognized that he could not purchase a slip, attempted to purchase a slip a year later, and was declined. He claims a right in the dockage area because of the provisions of Article 8 of the declaration which establishes a mechanism for the sale and maintenance of the boat slips. At the time the developer recorded a plat of the subdivision, the area referred to as the dock peninsula was not a part of the plat. The plat contains the following restrictive language: “[t]he easements, as shown by dashed lines hereon are reserved for installation and maintenance of utilities.” also, the deed to appellant’s lot contains the following restrictive language: “subject only to the following_ 3. Restrictions and dedications shown in plat;” Consequently, the area involved was never a part of the plat. It is still owned by the developer appellee. An easement can only be created by an instrument of the same dignity as one which would convey an interest in real property. Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949); Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926). I find no evidence in the record of any such written instrument. I find no error, therefore, in the trial court’s denial of rights to the appellant at this time. See and compare Tortoise Island Communities, Inc. v. Moorings Assn. Inc., 489 So.2d 22 (Fla.1986); Katcher v. San Souci Co., 200 So.2d 826 (Fla. 3d DCA1967), cert. discharged, 217 So.2d 297 (Fla.1969); Owen v. Yount, 198 So.2d 360, 362-63 (Fla. 2d DCA1967), cert. denied, 204 So.2d 330 (Fla.1967).

Therefore, I would affirm the final judgment here under review for the reasons above stated. 
      
      . The recorded Declaration which expressly granted a dock area as part of the subdivision’s common area was incorporated into Lewis’s contract and deed, therefore, Lewis’s easement was created by a duly-executed writing as required by the Statute of Frauds. See Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953).
     
      
      . This evidence included:
      
        a.Lewis Exits. 7 and 15: A black and white, Treister & Cantillo folded brochure, admittedly prepared by the developer which was given to Lewis and Ostrovsky in connection with the purchase of their lots, which states:
      
        All of the residents will commonly own a waterfront peninsula, which will be theirs to enjoy for sunning, fishing, parties or simply for the unsurpassed view of the bay.
      b. Lewis Exh. 6: A folded Jeanne Baker, Inc. brochure of the home ultimately purchased by Lewis entitled "The Anchorage.” The brochure is in color and contains the same depiction of the waterfront peninsula in the same coloring as the common area roadway ("Anchorage Way”) and a walled access route, also shaded as part of the common area.
      c. Lewis Exh. 9: A folded Merrill Lynch Realty brochure entitled "Villa Ipe at the Anchorage.” This color brochure depicts the subdivision and shows the same waterfront peninsula and walled access route shaded as part of the common area.
      d. Lewis Exhs. 11, 22: These price lists, prepared by the developer for use in the sale of the lots in the subdivision contain: (i) a general description of the property including "access to the waterfront" and (ii) the same 14,-810 square footage for Lot # 8 which excludes the waterfront peninsula and walkway thereto.
      e. Lewis Exh. 10: A blue-print dated September 23, 1983, prepared by the developer’s architects, Treister & Cantillo, depicting the same access route, waterfront peninsula and square footage of Lot #8 (excluding the waterfront peninsula and walkway), which was given to Mr. Ostrovsky in early 1987.
      f. Lewis Exhs. 17 and 21: Multiple listing service brochures for the Marymont and Villa Ipe homes, each of which indicates “ocean access” or "acc to ocean”, and on one of which, one of the developer’s brokers photocopied the same depiction found on the color brochures and the black and white brochure (showing a pathway to the waterfront peninsula.).
     
      
      . Article 8 reads, in relevant part:
      The Property contains a dock area which is a part of the Common Area of the Property. Separate dock slips or spaces may be designated by the Declarant or Board of Directors and may be available for purchase from the Declarant by Owners of Lots. Upon purchase by an Owner of a dock slip or space, said Owner and his guests shall have the exclusive use of said dock slip or space. Each Owner of a dock slip or space shall be assessed a separate monthly maintenance charge to be determined by the Board of Directors, which said charge shall be uniform for all dock slips and spaces, and it shall be the responsibility of the Association to maintain the dock area and dock slips and harbor area.
     