If you’re looking at waterfront land in Florida then you should know how to determine which properties ‘enjoy’ riparian rights. Riparian rights are statutory rights. If your Broker doesn’t know then it’s time for a new one. Call me, Chris Ryder, at 561.626.8550
Florida Statute 253.141 definition in part reads: “(1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law…” and it goes on to EXCLUDE certain lands from the definition of navigable waters: “(2) Navigable waters in this state shall not be held to extend to any permanent or transient waters in the form of so-called lakes, ponds, swamps or overflowed lands, lying over and upon areas which have heretofore been conveyed to private individuals by the United States or by the state without reservation of public rights in and to said waters.” Overflowed lands would be those where someone made seawall (or not), and then dug out what was once dry land, and water came in and covered that historically dry land. Or even if there is no seawall but it was similarly dredged then those owners do NOT enjoy statutory riparian rights.
So, how does one tell if the land if the land has riparian rights?
If the land below the water was covered by navigable water when the State of Florida was created in 1845 then that land (and control) of the water column is owned by the State of Florida (A/K/A Sovereign Submerged Lands). The abutters to these submerged lands have riparian rights.
CLICK HERE to read the University of Florida Levin College of Law memorandum.
IF you have a dock permit then READ THIS blog post for the a short cut to the method outlined below.
OK, so how do I know if the water in back of the house I want to buy was there, and was considered navigable, in 1845 when Florida was granted statehood and/or is owned by the state? Well, there’s a government agency called the Bureau of Survey and Mapping that keeps track of these things and they have performed a survey (as in land surveyors) of state owned land. In the age of the internet you can look up this information on the Florida Board of Trustees Land Document System (BTLDS) website. One of the many layers on this map is the Public Lands Survey System. A map of the land owned by the State of Florida. In MOST cases if there is public land shown on this map below the water adjacent to a property then the uplands parcel enjoys riparian rights. Check to make sure the property lines intersecting the water in the legal description extends down to the historic mean high-water or “meander” line for tidally influenced waterbodies or to the ordinary high-water mark for non-tidally water bodies.
An interesting note here is the line showing the intracoastal. In many places the ICW was placed over historically navigable water (owned by the state) and in others it connected two bodies of water over land that was historically dry. In northern Palm Beach County this was (is) an easement granted 06/08/1942 being 500 feet wide to the federal government. I’m thinking, digging and typing on this and I think we need a NEW POST on the history ICW of this land.
CLICK HERE to read all about how riparian rights are apportioned to the uplands. For MOST they will extend perpendicular to the sea wall out into the waterway to the line of navigation which is defined as the nearer of a) the marked channel, b) 4′ of water at mean low tide or c) 25% of the canal width from sea wall to the sea wall on the opposite side of the canal.
The next question is, if the land below the water is NOT owned by the state then who does own the land below the water column and what rights, if any, extend to the upland abutters? Since the uplands property owner does not own the land below the canal then they only have rights to use that land (for pilings and such to support a dock) and the water column over it (to actually float a boat on) to the extent that the predecessor in title (of the submerged lands) granted it to them.
Because of this a few more items to look for (as if there are not enough already) is something on the plat, or accompanying it in the public record, for the owner of one uplands parcel to traverse (by boat) over the submerged lands (assuming non riparian) of others between their parcel and a waterway which is over state owned lands where the general public enjoys “rights of navigation”. AND, something that spells out who is going to pay for maintenance dredging of this man made canal because the state most certainly is NOT.
In North Palm Beach for instance, most BUT NOT ALL, the canals were man made and were dedicated (given) to the Village when the land was platted much like a public street. Thus, the Village of North Palm Beach owns most (but not all) the land below the canals in the Village. A quick way to find out who owns that land is to look it up the uplands parcel on the the property appraisers site and click on the water and see what the legal description is. Be careful though as the ones in North Palm do not bring up a resulting Parcel ID. In those locations, one must lookup the legal description of an uplands parcel, then look at the recorded plat it’s on, then look for agreements recorded with that plat spelling out the use and maintenance of the canal. In places like Admirals Cove and Jonathans Landing the property owners association owns the bottom and the recorded docs spell out the answers to the questions noted above.
For stand alone docks like those in Mariners Cove which have a parcel ID and you can get title insurance on it and as such they may be financed.
Communities like Twelve Oaks and Turtle Creek East have marina’s on a submerged land lease from the state because the uplands DO enjoy riparian rights so that bottomage is owned by the state. Lake Worth (the body of water) and the Loxahatchee River were navigable water when Florida was created. Docks on state owned bottomage land like those at Twelve Oaks are NOT eligible for title insurance as they are a lease. The association does not own the land, they just have a lease and a license to build a dock on it for use of water column.
What most private parcel owners care about is how big and how many docks may I have?
I CAN NOT STRESS THIS ENOUGH. DO NOT RELY ON PAPA OR SOME STATE WEB SITE, GET A TITLE SEARCH DONE ON THE WATER YOU ABUT OR HIRE A COMPETANT REAL ESTAE LAWYER. You are about to spend a ton of money for a waterfront property. You want to be sure and this is the ONLY way.
