Water Boundaries & Title Insurance

waterfront boundaries and title insurance
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.

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.

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.

water boundaries and title insurance

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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