The Realtor® has a great listing – it’s beautiful beachfront property. But, the buyer wants to know what she actually gets for the premium price. Is the beach hers? Can anyone else walk along the beach in front of her house? Can she put in a dock for her boat? If the beach starts to erode can she put it something to stop it? Will the title company guarantee her rights to the beach?
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There are three main areas of concern to the buyer
- The first is title – that is, who owns the beach?
- The second is the location of the boundaries – how far out does the owner’s title extend, where is the boundary between the upland and the beach, and does the upland boundary extend straight out into the water?
- The third is use – what can the owner or others do on the beach or the water?
These waterfront issues are complicated, and the Realtor® should never assume anything about who owns what and what rights the upland owner has to use or control use of the beach.
Who owns the beach?
On navigable waters on Puget Sound, the title company will only insure land that was deeded by the State. But for non-navigable lakes or streams all upland owners would own not only the “beach” but also the submerged land out to the center. But then, where is the location of the side boundaries that extend out into the water? If a dock is built, how can the upland owner know if it extends over the line? That issue will likely require a survey that will satisfy both owners.
Private Riparian Rights
Technically, riparian rights pertain to a river or stream, while littoral land borders the ocean, sound or a lake. However, the term riparian is now commonly used for both littoral and riparian land. In addition to ownership of the bed of a non-navigable lake, the abutting upland owner is a riparian owner. That person has been held to have the right, along with all other owners fronting on the lake, to the reasonable use of the surface of the lake. These riparian rights of abutters are owned in common. In other words, each upland owner has the right to use the entire surface of the lake, not just the area over that portion of the bed of the lake owned by the riparian abutter. A developer attempted to erect an apartment building over the bed of Bitter Lake in North Seattle. Even though there was no question as to the developer’s title to that portion of the bed of the lake, it being non-navigable, the court required that the building be removed because of its interference with the rights of the other riparian owners on Bitter Lake to make reasonable use of the surface of the lake.
What use can be made of the beach or the water?
A waterfront owner has riparian rights to use the water but so do all the other upland owners. None could, for example, dam a stream to create a pond or re-route the course of a stream or dredge or add fill to a lake. Water itself is not owned privately – it’s a natural resource, so the public can often also use the water.
The Public Trust Doctrine
The Public Trust Doctrine, typically excepted from title coverages when the insured land is submerged or abuts water, is essentially the theory that vests the government with the authority to protect the public interest, to regulate (including development, commerce, navigation and environmental protection – essentially, zoning) shorelands, tidelands and wetlands, and uplands within 200 feet of these lands. While the term is not necessarily expressly used in our statutes or case law, it is embodied constitutionally in the harbor line system and statutorily in the Shoreline Management Act.47 State agencies involved in different aspects of this include the Departments of Ecology, Fish and Wildlife, and Natural Resources. In addition, the U. S. Army Corps of Engineers must usually issue a permit to place improvements in navigable waters.
Also, the state or federal government has broad regulatory authority under the public trust doctrine affecting both the water and the uplands to the extent it is necessary to protect water quality, fishing resources and public commerce. So a bulkhead intended to preserve upland property, or a dock into the water or even a house on the uplands can be regulated or prohibited altogether.
“A waterfront owner may be out of luck if there are changes to the course of a stream that eliminate access to it.”
And nature will take it’s course…
It’s also important to note that nature can impact title to the land. For example, a waterfront owner may be out of luck if there are changes to the course of a stream that eliminate access to it. More importantly, if a stream is the boundary, owners on both sides might either gain or lose land. If the change is sudden (a man-made or natural mudslide, for example) title won’t change, but the land may be high and dry with no access rights. But, if it happens gradually over a long time period, the boundary line might also move – meaning one of the owners gains land and the other one loses land, but water access would remain for both.
The title company will only affirmatively insure title and boundaries of waterfront land to the extent they’ve been established of record, and if not, will take exceptions to such matters. And, no use rights will be insured. Instead, exceptions for possible rights of other riparian owners or the public will be in the title policy.
Have you dealt with a water boundary concern on a real estate transaction?
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And if you want more detailed information on Waterfront Title in Washington state, you can download the manual by clicking here.