Unfortunately, summer is coming to end here in the Mid-Atlantic region. Every year many of us like to spend a little time away from the the hustle and bustle of our towns and cities to enjoy some cool ocean breezes at the beach. Unfortunately, the beach is not necessarily the best place to clear the the respective minds of title people. To the contrary, we are reminded that waterfront properties have special title issues, some of which are discussed below.
Picture yourself hauling your ice chest and beach chair as you walk from your car toward the ocean. You are on what is known as the “upland”. Depending upon how far away you had to park, at some point you will arrive at a point at which there is no more grass, shrubbery or major improvements. All that is between you and the water is sand. You have just passed what is known as the “vegetation line.” As you continue toward the water, the dry, hot sand becomes wet. You have just passed the “mean high tide line”. Your next imaginary line is the “mean low tide line”. It will probably be under water, unless you are there right at low tide. Beyond this line is the ocean itself.
The casual visitor to the beach may assume that everything seaward of the vegetation line is public property, entitled to be used by all. However, the trained title professional knows that this is not necessarily the case. Different states have different laws regarding the rights of private oceanfront property owners (“littoral” owners) verses the rights of the public to use the beach.
In most states boarding the Atlantic Ocean, the Pacific Ocean or the Gulf of Mexico, any lands that are “washed by the tide” are owned by the state. It is the mean high tide line, not the vegetation line, which forms the seaward boundary of oceanfront property. Ownership of the upland includes the dry sand, but not the wet sand, seaward of the vegetation line.
In Maine, New Hampshire and Massachusetts, however, because of a 17th Century law still recognized today, the littoral owner will be able to claim fee title all the way down to the mean low tide line, or 100 rods (1650 feet) from the mean high tide line, whichever is shorter.
All of that said, there have been lawsuits brought against private property owners in several states (including Florida and New Jersey), seeking to establish a public right to use the dry sand area for recreation area and for access to the water. Various theories, such as claims of prescriptive easements and the doctrine of customary usage, have been used to allow public use of portions of beachfront property. Whenever insuring title to beachfront property, consult with your underwriting counsel regarding the need for an exception for any rights of the public to use the property.
Texas law provides for an easement in favor of the public from the vegetation line seaward to the mean low tide line. This easement is created by statute, not by a written document. So, while the owners of a Texas beachfront home may have fee title to the dry sand, they do not have the exclusive right to use it. Moreover, the vegetation line along the Gulf Coast is greatly influenced by hurricanes. In 1983 and again in 2008, Galveston Island and nearby areas were hit by major hurricanes. One of the effects of the hurricanes was to move the vegetation line further west. Ground that was once part of the upland is now subject to the public’s easement to use the beach. Property owners are typically not permitted to build or maintain structures located seaward of the new vegetation line.
Tidal Rivers and Bays
If you enjoy sailing or crabbing, you are probably familiar with tidal rivers and bays. They are waterways located in coastal areas that are affected by the ebb and flow of the tide. Although less noticeable than those of the ocean, these waterways also have mean high and low tide lines. As with oceanfront property, the boundary of property that boarders a tidal river or bay extends to the mean high tide mark, in most states. However, in some states, the littoral owner has fee title to the low water mark of the tidal waterway. The state will hold title to the submerged land, for the benefit of the public.
In New Jersey, the general rule is that the state holds title to all lands now or formerly flowed by tidewater. This doctrine has led to an elaborate mapping system, which identifies dry land that was formerly affected by the tides. In many cases, a developer of property on or near the water will have obtained a “Tidelands Grant” from the State, in which the State (at a price, of course) relinquishes its interest to land formerly affected by the tides. This doctrine affects property along much of the Hudson and Delaware Rivers and their tributaries, as well as property near the Atlantic Ocean and near the numerous rivers and bays along the Jersey Shore.
Other states, such as Florida and Maryland, also have specific laws affecting title to tidal property. Again, consult with your underwriting counsel regarding the need for a specific exception applicable to tidal property in your state.
Regardless of the fee ownership, all property covered by navigable water is subject to the rights of the United States and the public to use the water for transportation and commerce. A body of water is generally considered “navigable” if it can be used in its ordinary condition for commerce or transportation. An exception for this “navigable servitude” of the United States should be included in all policies insuring land located on any navigable waterway.
Sometimes, there is a bulkhead between the land and the waterway. In such cases, the policy should include an exception to the effect that title to property beyond the bulkhead is not insured under the policy. When dealing with riverfront property, also be aware that the owners of land upstream and downstream have certain rights known as “riparian rights”. These include rights to take and use the waters. An exception for riparian rights should be included on all policies insuring riverfront property.
If a portion of a body of water has been artificially filled in, additional issues arise. If the water was navigable, a permit would have had to have been obtained from the United States and/or the applicable state. Title to the filled in land would be subject to the terms of such permit, and an exception to such terms should be taken on all policies. Many cities contain property built on landfill. If you visit Boston’s Back Bay, Battery Park City in New York, or the San Francisco Embarcadero, ask your tour guide what exceptions were included in the title policies covering these properties by reason of their being built on landfill. Let me know what type of reaction you get.
The foregoing is meant to briefly point out some of the special issues relating to coastal property. There are many others as well. As always, you are encouraged to contact your underwriting attorney for assistance when handling transactions involving waterfront property. And, of course, enjoy your vacation!
The original article was written by Wade Thunhorst from Title Resources Guaranty Company, our affiliated title underwriter headquartered in Dallas, TX.