Imagine you buy that house of your dreams with a beautiful waterfront view. You naturally assume that because your home has that incredible waterfront view that you also have the legal right to access the water and to use it for customary uses, such as recreation, or even the location of a dock. And in most cases, you probably do. However, that should not be left to chance, as there are countless instances where waterfront parcels do not have the rights you expected them to have. And you don’t want to find this out after you purchase the home.
The due diligence that one should undertake when buying waterfront property differs significantly from all other types of property, and should not be taken for granted. When buying waterfront property of any kind, whether on a canal, a bay, or even the gulf, one should consider the following:
- Does the property actually physically abut (i.e. touch) the waterway in question? Although it may appear to do so, this requires a survey that accurately depicts the proper margin of the waterway (many waterfront surveys do not), and a legal analysis to confirm that there are no gaps, margins, or hiatuses between the property and the margin of the waterway. Even a one inch gap precludes waterfront access.
- If there is a dock or related facilities, were they properly permitted? And no, do not assume that because a dock (or any improvement exists), that it must have been properly permitted.
- Can you replace the dock if it is damaged or destroyed?
- Do third parties have the right to the use or enjoyment of your dock?
- If there is no dock, can you place one there? Do not fall into the common trap of assuming that because your neighbor has one that you too can have one. The determination is extremely site specific.
- What restrictions might you have with regard to the placement of a new dock?
- Does the parcel indeed have riparian rights for use of the applicable waterway?
- If your waterfront access is over another parcel, does such access actually get you to the waterfront, do you have the legal right to use it and, most importantly, does it specifically confer the right to also locate a dock?
- Conversely, do third parties have the right to enjoy the riparian rights associated with your parcel?
- If there is a seawall, is it properly located on the property’s waterfront boundary, and does the face of the seawall match the property’s waterfront boundary? An inspection can also determine if the seawall is structurally sound, which if poorly constructed could lead to costly repairs.
- In the likely event that the waterfront parcel is located within a flood prone area, was the home constructed to satisfy FEMA requirements?
- If there is no home on the property, are you familiar with FEMA requirements for the subject parcel (and the most recently revised flood map for such parcel)?
- Does the parcel have unique setback/construction requirements due to the water it abuts and how do they apply? Do the improvements satisfy those requirements?
- If the home is ever damaged or destroyed, is it important for you to know what requirements you might need to satisfy to replace it.
Obviously this list is not exhaustive, and we strongly recommend the use of a real estate attorney with waterfront experience to assist you in whatever due diligence you elect to undertake, particularly if you are acquiring waterfront property. Should you have any questions regarding the foregoing, we urge you to consult with your real estate attorney.
Berlin Patten Ebling, PLLC
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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