Imagine you buy that house of your dreams with a beautiful waterfront view. You naturally assume that because your home has that incredible waterfront view that you also have the legal right to access the water and to use it for customary uses, such as recreation, or even the location of a dock. And in most cases, you probably do. However, that should not be left to chance, as there are countless instances where waterfront parcels do not have the rights you expected them to have. And you don’t want to find this out after you purchase the home.
The due diligence that one should undertake when buying waterfront property differs significantly from all other types of property, and should not be taken for granted. When buying waterfront property of any kind, whether on a canal, a bay, or even the gulf, one should consider the following:
- Does the property actually physically abut (i.e. touch) the waterway in question? Although it may appear to do so, this requires a survey that accurately depicts the proper margin of the waterway (many waterfront surveys do not), and a legal analysis to confirm that there are no gaps, margins, or hiatuses between the property and the margin of the waterway. Even a one inch gap precludes waterfront access.
- If there is a dock or related facilities, were they properly permitted? And no, do not assume that because a dock (or any improvement exists), that it must have been properly permitted.
- Can you replace the dock if it is damaged or destroyed?
- Do third parties have the right to the use or enjoyment of your dock?
- If there is no dock, can you place one there? Do not fall into the common trap of assuming that because your neighbor has one that you too can have one. The determination is extremely site specific.
- What restrictions might you have with regard to the placement of a new dock?
- Does the parcel indeed have riparian rights for use of the applicable waterway?
- If your waterfront access is over another parcel, does such access actually get you to the waterfront, do you have the legal right to use it and, most importantly, does it specifically confer the right to also locate a dock?
- Conversely, do third parties have the right to enjoy the riparian rights associated with your parcel?
- If there is a seawall, is it properly located on the property’s waterfront boundary, and does the face of the seawall match the property’s waterfront boundary? An inspection can also determine if the seawall is structurally sound, which if poorly constructed could lead to costly repairs.
- In the likely event that the waterfront parcel is located within a flood prone area, was the home constructed to satisfy FEMA requirements?
- If there is no home on the property, are you familiar with FEMA requirements for the subject parcel (and the most recently revised flood map for such parcel)?
- Does the parcel have unique setback/construction requirements due to the water it abuts and how do they apply? Do the improvements satisfy those requirements?
- If the home is ever damaged or destroyed, is it important for you to know what requirements you might need to satisfy to replace it.
Obviously this list is not exhaustive, and we strongly recommend the use of a real estate attorney with waterfront experience to assist you in whatever due diligence you elect to undertake, particularly if you are acquiring waterfront property. Sovereign rights and riparian rights are terms often used when conducting due diligence with respect to the purchase of waterfront property in Florida. So, what do these terms have to do with your right to have dock extending from your waterfront property? Well, the answer is everything!
When Florida became a state in 1845, it was granted title to the lands beneath navigable waters and tidelands by virtue of its sovereignty. As a result of Florida’s sovereign rights, Florida claims ownership interest in all beds and bottoms of navigable rivers, bayous, lagoons, lakes, bays, sounds, inlets, oceans, gulfs and other bodies of water within the geographical boundaries of Florida. As a result of Florida’s sovereign rights it can be difficult to distinguish exactly where private land rights end and the state sovereign land rights begin. Out of this confusion, the term “riparian rights” was born.
Riparian rights are those that attach to LAND BORDERING UPON NAVIGABLE WATERS and include the rights of ingress, egress, docking, boating, bathing, fishing and the right to an unobstructed view of the water. Such rights inure to the upland owner of the upland. I hope you all noticed that LAND BORDERING UPON NAVIGABLE WATERS is in bold and all caps, which means that it is an important distinguishing factor with respect to riparian rights and ultimately your ability to build that dock you always wanted or keep that dock you thought you owned!
For example, the 4th District Court of Appeal recently held the city’s denial of a property owner’s permit to build a dock on submerged lands was proper because the property owner’s land did not abut navigable waters. In that case, the property owner argued that the city’s denial of his permit was improper because his land was adjacent to navigable water and as such he had the right to build a dock. In reviewing the chain of title, the court was able to determine that a gap existed between the property and the navigable waters. Thus, the court was correct in determining property owner had no riparian rights and thus no legal right to build a dock. See Whetstone v. City of St. Augustine, Florida, No. 5D14-3628 (Fla. 4th DCA Feb. 12, 2016).
The takeaway here is that a gap between the property and the bordering navigable waters could have a very significant and costly impact on that property you thought was waterfront. As in the above example, it could mean that you have no riparian rights whatsoever. Obviously, this is a very brief explanation of two very complex terms and only one example of numerous issues that could come up when purchasing waterfront property. As such, we strongly recommend the use of a real estate attorney with waterfront experience to assist you in your acquisition of waterfront property. Should you have any questions regarding the foregoing, we urge you to consult with your real estate attorney.
Berlin Patten Ebling, PLLC
Article Authored by Will McComb, Esq. firstname.lastname@example.org