Most buyers of waterfront property assume they have an absolute right to access and use the waterbody as they see fit, but like most things in life, it’s best to avoid assumptions. Whether its an ocean, gulf, stream, creek, canal, channel, lake, pond, or any other type of waterbody, understanding the water rights associated with a particular property can be critical to ensuring that your expectations are consistent with your rights and applicable law. Some of the more frequent issues that arise with waterfront properties include:
Ownership Gaps Between Waterfront – When the ownership of the real estate that lies directly on the waterfront is owned by another party, this is considered an ownership gap and can result in the lack of a legal right to have direct access to the waterbody. These can arise from a number of different causes, but the end result is that the owner of the real estate having the home on it does not in fact own the area of real estate connected to the waterbody. These ownership gaps can sometimes be inches or several feet and can result from numerous causes, but most are the result of poor development practices during the subdivision of land.
Dock Permit Rights and Restrictions – While the existence of a dock with a waterfront home is a helpful indicator that the dock may in fact have the right to exist, it is important to remember two things: (i) not all docks are installed with the proper permits and (ii) some docks were installed before permits may have been required – making it subject to new permitted rules if replaced. As a result, reviewing the existence of a dock permit or applicable requirements for a dock will be needed to getting comfort that the dock has a right to exist and be maintained. In addition, dock permits can sometimes have special restrictions associated with them, including depth draft restrictions limiting the draft depth of the vessels moored at the dock.
Access Easements and Entry Rights – It’s important to review the boundary survey for the waterfront home to understand whether the property includes access easement or entry rights in favor of adjacent homeowners. These access easements or entry rights can include the right to access the waterbody or the right to enter the waterfront property to use an existing dock (or install a second dock) on the waterfront property. In most cases, these types of access easements and entry rights have no limitation on the time of entry or the number of persons that can use the access easement or entry right. This makes it especially important to understand not just whether an access easement or entry right in exists, but also what are the rights and obligations related to the access easement or entry right.