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Eight Things To Know About Buying and Selling Waterfront Property

Written by Daniel P. Dalton on July 11, 2018 Category: CEQA, Detroit Land Use and Zoning, Land Use and Zoning, Michigan Land Use and Zoning

Owning waterfront land is not easy.  Depending on the state you live in, the land that’s adjacent to a body of water normally carries with it certain rights relative to that body of water.  Although water rights may vary according to federal, state and local law in specific situations and a buyer should always consult an attorney to be sure of what their water rights are.

There are a minimum of eight things to think about when buying waterfront property.  They are, in no particular order, the following:

  • Access. The most common issue we see that that people buy land near the water and think they have access to it, were told by the now long gone real estate agent that they had access to it and are now being told by their new not-so-friendly neighbors that they do not have access to the water.  A title search for easements allowing access is necessary prior to closing on the purchase of the land.  Otherwise, the buyer will have a nice view of the water, but no access to it.

 

  • Waterfront Buffer Zones. If you’re within 1,000 feet of tidal waters or tidal wetlands, your landscaping and building plans may be subject to additional scrutiny and requirements from the local government, state law and in some instances, the U.S. Army Corp of Engineers.  Think before you buy.  If you are building a new home on the water, or considering a tear-down-rebuild scenario, you will want to include engineering feasibility contingencies in order to obtain approval to do what you want before you purchase.

 

  • Littoral rights. These are the rights commonly granted to owners of property that border a bay, a large lake, the ocean, or a sea. Owners of property abutting such bodies of water have an unrestricted right to use the water and ownership of the land up to the average or mean high water mark.  The government owns the land below that point.

 

  • Riparian rights.  This is the rights of property owners who own land abutting rivers and streams. Each state has specific laws governing riparian rights. Further, the rights vary a little depending on whether the river or stream is considered navigable, or capable of supporting commercial water traffic. When a river or steam is considered navigable, owners of property abutting the river own the land up to the edge of the water or the average or mean high water mark. The state owns the body of the water and the property under the water.  On the other hand, when the river or stream isn’t navigable, the rights of owners with property abutting the river or stream extend to the centerline of the river or stream.  In either case, owners of property that abuts a river or stream have a right to use the water, but they don’t have any right to contaminate the water or interrupt or change the flow of the water. Depending on the state you are in, buyers can find both riparian and non-riparian waterfront.  Non-riparian waterfront usually means there is water but access to/from the water is over community property. Typically non-riparian waterfront means that the owner doesn’t have a private pier or dock on the water.

 

  • Watering rights. In agricultural areas, rights to water may be controlled by special agreement between property owners. In addition, where water is scarce, the doctrine of prior appropriation may apply. The doctrine of prior appropriation is state-specific and may be used in states where water resources are limited. It basically places the right to control water resources in the hands of the state rather than individual property owners.

 

  • Water depth. Make sure the buyer understands the depth of the water for purposes of dock placement and for access to other bodies of water.  Look at the history of dredging to check the depth that leads up to the pier since this could have filled in since last measured. This is also important in the context of knowing the fixed height bridges between you and open water. Buyers with sailboats need higher bridges and power boaters need not worry as much concerning the height of bridges.

 

  • Docks and piers.Depending on your location, the process of pier permitting involves Federal, State, County and local agencies’ review permit applications.

 

  • Flood insurance. Request a copy of the property owner’s elevation certificate.  With a look at the “elevation cert” followed by a call to your insurance company, you should know how much more it is going to cost to buy flood insurance for the property on an annual basis and if there is a history of flooding on the property. If you are borrowing money to purchase your home, you will be required to purchase flood insurance.

If you have a basic understanding of the issues involving water rights, your buyer will have clear understanding of what they are buying and you will avoid a post purchase regret call from a buyer.  If you have additional questions concerning this issue, please feel free to contact one of the professionals at Dalton & Tomich, PLC.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.