Navigating Homebuyer's  and Property Owner's Misconceptions on Water Rights

Many homeowners and buyers mistakenly believe that a portion of the beautiful lake, the dock, and land below it in their backyard are part of their property. Unfortunately, this assumption can lead to major disappointment and a false impression of the value of the property. Earlier this year a St. Petersburg man learned that his dock and the land underneath was not his, but was actually owned by the city.

It may surprise a lot of homebuyers that the government would own the dock or the land under it on a waterfront property, but government control of waterways is nothing new. Since the time of the Roman Empire, government policies regarding submerged land are based on the principle that navigable waters, like the ocean, gulfs, rivers, lakes and streams should be accessible to the public.

Riparian Rights in Florida have emerged as a result to protect property owners’ rights to ingress, egress, boating, bathing, fishing and even the right to an unobstructed view of the water.

Additional conflict has arisen when the submerged land is owned privately. Upland property owners have argued that Riparian Rights give them the ability to build a dock, but the language in the law to “wharf out” may not apply to the construction of recreational docks.

So, what rights do property owners have to the water adjacent to their land?

Well, it depends. Each parcel of land will have different lot lines, easements, and government restrictions regarding water use. Often times, boat slips have their own property identification number, or parcel number, and a separate legal description. If that's the case, homebuyers should make sure both properties are a part of the real estate transaction.

It’s imperative that homebuyers hire a real estate lawyer or title agent to research property records.

How can you prevent waterfront property disappointment?

Review the legal description. The address and parcel number, or property ID number, doesn’t provide a legally sufficient amount of information about a piece of property to be conveyed or mortgaged. The legal description is what most real estate professionals refer to when closing on a deal because it's more descriptive. They are especially important in the selling of large tracts of land and commercial property transactions. Today, land surveyors use precise laser instruments to measure exact angles and distances of a piece of land based upon the legal description.

Get an updated land survey. This will show what public access and government easements are on your beach or lake front property. It will provide the homebuyer with a clear picture of exactly what they are buying and what they will have to share. For anyone hoping to do any additional building, a survey will be especially beneficial. A new land survey costs an average of $300-700 dollars depending on the size, depth and shape of the property, but the knowledge you gain from it will be worth the investment.

Get an unrecorded municipal lien search for the boat slip. If the boat dock has its own parcel number, be sure to search for unrecorded debt, potential permitting issues, and code violations for both the main home and the dock. Especially in Florida, there are a whole host of additional issues that could be associated with a boat slip. Many municipalities don’t record that information in the clerk, so it won’t always be revealed in a traditional title search, and since there are two separate parcel numbers, many municipalities will consider the dock a separate search from the main home’s parcel number. Each parcel will have its own record history to search, which means municipal fees will apply to each.

Buying waterfront property can be an expensive but worthwhile investment. If you are a title agent or real estate attorney, make sure your clients, especially the first-time buyers, are fully aware of how water rights could impact their purchase and expectations. If you are a buyer, be sure to always contact your title agent or real estate attorney for more clarity on how Riparian Rights apply to the specific property you want to buy.

 

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