Know your (water) rights before purchasing that lakefront home

Daniel Dalton
Dalton &?Tomich

Outdoor recreation seekers are flocking to the water now that summer is here and states have begun relaxing their COVID-19 restrictions, and that has some home buyers in search of shoreline properties for a longer-lasting waterfront experience. Lakefront homeowners and prospective buyers should understand, however, that the land adjacent to a body of water normally carries with it certain rights and restrictions relative to that water, according to Dalton & Tomich attorney Daniel P. Dalton, who represents clients in land use and zoning litigation.

 “Beaches, boating and gorgeous sunsets should not be the only thing on people’s minds when looking for that ideal waterfront property,” Dalton cautioned. “There are many varying federal, state and local specifics within the law that dictate water access, where property ownership begins and ends, and the types of changes that can be made to the property. That’s why potential buyers need to know their water rights before purchasing a property.”

Here are key considerations:

Access

Buying land near the water? Make sure there is water access. Surprisingly, this is not a given. A title search for easements allowing access is necessary prior to closing on the purchase of the land. Otherwise, the buyer will have a nice view of the water — without actual access.

Waterfront Buffer Zones

Those within 1,000 feet of tidal waters or tidal wetlands may be subject to additional scrutiny and requirements for landscaping and building plans by the local government, state law and in some instances, the U.S. Army Corp of Engineers. When building a new home on the water, or considering a tear-down-rebuild scenario, include engineering feasibility contingencies in order to obtain approval before the purchase.

Littoral rights

These are the rights commonly granted to owners of property that border a bay, a large lake, the ocean, or a sea. Owners of property abutting such bodies of water have an unrestricted right to use the water and ownership of the land up to the average or mean high water mark. The government owns the land below that point.

Riparian rights

Each state has specific laws governing riparian rights, which are the rights of property owners who own land abutting rivers and streams. The rights vary depending on whether the river or stream is considered navigable, or capable of supporting commercial water traffic. When a river or steam is considered navigable, owners of property abutting the river own the land up to the edge of the water or the average or mean high water mark. The state owns the body of the water and the property under the water. On the other hand, when the river or stream is not navigable, the rights of owners with property abutting the river or stream extend to the centerline of the river or stream. In either case, owners of property that abuts a river or stream have a right to use the water, but they do not have any right to contaminate the water or interrupt or change the flow of the water. Depending on the state you are in, buyers can find both riparian and non-riparian waterfront. Non-riparian waterfront usually means there is water but access to/from the water is over community property. Typically, non-riparian waterfront means that the owner does not have a private pier or dock on the water.

Watering rights

 In agricultural areas, rights to water may be controlled by a special agreement between property owners. Where water is scarce, the doctrine of prior appropriation may apply and be used in states where water resources are limited. It basically places the right to control water resources in the hands of the state rather than individual property owners.

Water depth

Buyers need to know the depth of the water for purposes of dock placement and access to other bodies of water. Look at the history of dredging to check the depth that leads up to the pier, since this could have filled in since last measured. This is also important in the context of knowing the fixed height bridges between the property and open water. Buyers with sailboats need higher bridges; other boaters need not worry as much concerning the height of bridges.

Docks and piers

Depending on property location, the process of pier permitting involves federal, state, county, and local agencies’ reviewing permit applications.

Flood insurance

Request a copy of the property owner’s elevation certificate. Look at the “elevation cert” and call your insurance company to determine how much more it is going to cost to buy flood insurance for the property on an annual basis — and if there is a history of flooding on the property. If borrowing money to purchase the home, flood insurance will be required.

Having a basic understanding about water rights  will help avoid buyer’s remorse and give homeowners the waterfront lifestyle they desire.

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Dalton & Tomich has written a Michigan handbook, that can be downloaded for free at https://www.daltontomich.com/easements-lake-access-and-riparian-rights/.