What are my rights if I own a waterfront property?
CLICK HERE to read my updated blog posting on this and how to tell which one it is for a particular property.
There are two large sub sets to the answer to this question. Does the uplands have riparian rights?
If the water over the submerged land was NOT historically navigable, as in when the state was created, then someone owns the land below that water column. Someone, at some point in time, created a sea wall and dug out in front of it to allow water to cover or submerge the land. This land is owned by someone (usually a Home Owners Association), it may or may not have a parcel ID and it’s most likely taxed. If you own land on a canal that looks man made then it probably was and you may or may not have an easement over the submerged land by virtue of your Home Owners Association documents or other recorded documents. Much of the intracoastal waterway in this area is over land which an easement was taken.
By contract a property is said to have Riparian rights if abuts water and the submerged land which WAS historically navigable. Think rivers and lakes. These upland properties do NOT own any land under the water nor do they own any land in between the high and low water called the inter tidal zone. The upland property owners riparian rights include the rights of ingress, egress, boating, bathing, fishing and even the right to an unobstructed view of the water abutting their land. The right to an unobstructed view is somewhat unique to Florida riparian property owners. The owner of a riparian property has the right to get out to the navigable water which is about 4′ of depth or the first marked channel. The state will in essence grant you a permit to place a dock on the submerged land to get you from your uplands to the navigable water.
One big difference between these two is that one can get title insurance on a littoral rights land. I copied this from the the ‘The Fund’ title insurance underwriters handbook…
“C. Boat Slips/Docks:
Under circumstances in which the insured appurtenance consists of a boat slip or dock, the FUND member should be mindful of the possible ownership interest of the State of Florida in the submerged lands underlying the slip or dock. The member should confirm that the submerged lands are privately owned. In addition, title policies issued must contain exceptions for the rights of the public to use the navigable waters covering the lands and the rights of the State of Florida and the
USA to regulate the use of the navigable waters, under TN 32.01.01(B)(1). Further, exception for riparian and littoral rights (TN 32.02.01) should be made and the possible application of the Navigational Servitude Exception (TN 32.02.03) evaluated. In the event that private ownership of the bottomlands cannot be confirmed, the slip/dock should not be insured.”
So, if you buying a dock in say Mariners Cove then it has a parcel ID, it’s a littoral area, one can get title insurance on it and thus it’s financeable. But if your buying a dock in say Twelve Oaks then this is an ownership in the Marina Association with an exclusive right to use say Dock X-X. The marina is built on what was historically navigable water. The state owns the land under the dock and it granted a permit to the Association to build and maintain the dock. One can not get title insurance on this ownership interest.
Most people reading this are only concerned with docking but an interesting aside to the conversation is that the state has expanded the inter tidal zone definition along a beach defined as: “Beach” means the zone of unconsolidated material that extends landward from the mean low-water line to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation, usually the effective limit of storm waves. “Beach” is alternatively termed “shore.”” Thus, there is an easement on ALL beaches in Florida for ‘public use and enjoyment’.
