Oct 15

Is That Property Really “Waterfront?”

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September 2018

THE BARNES WALKER EDUCATIONAL SERIES
proudly presents:

Is That Property Really “Waterfront?”

A real estate story with a very happy ending occurs when a seller and buyer and their real estate agents close the sale and purchase of a multi-million dollar property on the water. Or does it? Maybe not, if no one obtained a survey or studied the survey. That multi-million dollar property may not truly be on the water.

A. What Is a Waterfront Property?

How could a property with no building or other structure between it and the water not be waterfront? A property is not waterfront property unless its legal description extends down to the “mean high-water mark or line” for tidally influenced waterbodies or to the “ordinary high-water mark or line” for non-tidally waterbodies. Tidally influenced waterbodies include the Atlantic Ocean, Gulf of Mexico, bays, the intracoastal waterway, and those parts of the Manatee and Braden Rivers and Phillippi Creek which are influenced by tides and are brackish. Non-tidally influenced waterbodies include creeks, ponds, those parts of rivers which are fresh water and not tidally influenced, and lakes, such as the Myakka River and Lake Myakka. Thus, if a property’s boundaries do not extend to one of these lines, it is not waterfront property, and someone else owns the land between the subject property and the waterbody.

B. What if Property Is Misrepresented as Waterfront?

If a property is not truly waterfront, as stated above, someone else owns land between the subject property and the water, which means that intervening landowner could erect structures, walls, and fences to deny the subject property owner physical access (there already is no legal access) to the water and even a view of the water. Their purpose? Often it is to extort, albeit legally, substantial monies from the subject property owner to purchase what could be a very narrow strip of land (as small as a foot or two). If the intervening land is large enough, its owner may refuse to sell it or grant an access or view easement over it.

We all know of lots which are only 50 feet wide with perhaps a 1,500 square foot or smaller home on them which might be worth $100,000.00 in unincorporated parts of Manatee and Sarasota Counties. If located on the Gulf of Mexico, however, they are probably worth more than $1,000,000.00. Therefore, if a property has been negligently or intentionally misrepresented as waterfront when it is not, its value will be substantially diminished. Even if the intervening land between the subject property and the water can be purchased, its cost will be substantial, in addition to attorneys’ fees. Thus, a buyer who buys property which is misrepresented as waterfront will typically sue the parties involved in the transaction to recover substantial sums of monies representing the loss in value of his or her property and/or the cost of purchasing the intervening land. Sellers, listing real estate agents and brokers, and the buyer’s agent and broker are likely to be sued for misrepresentation and/or malpractice for not discovering the misrepresentation.

C. Will Title Insurance Save the Day?

But you say, “Wait, the buyer has title insurance – the buyer can file a claim and be paid for all of the buyer’s losses by the title insurer. As a result, the buyer won’t sue anybody. I’m safe!”

Wrong! Title insurance insures that the buyer has marketable title to the land, home, and other improvements within the boundary lines of the subject property. It does not insure any aspect of the property beyond the property’s boundary lines (except access). If the subject property’s boundaries end one foot shy of the mean or ordinary high-water mark or line, the buyer has title insurance, but it does not insure that the buyer owns that additional one foot of intervening land.

In addition, unlike the authors of this article, many closing and title agents, including real estate attorneys serving only as closing and title agents, take the position that their obligation is to simply provide a title insurance commitment and pass on a survey to the buyer, without advising the buyer, seller, or the real estate agents that the property may not actually extend to the water line. While it is true that a closing/title agent has no legal duty to provide that notice or advice (unless he or she is an attorney who has been retained as a lawyer by the buyer), the authors question that position on moral grounds.

D. How Does Florida Law Determine What Is Waterfront Property?

Given the high stakes in representing a property as “waterfront,” it is important to understand how Florida law governs properties adjoining waterbodies. To do so, you must understand what “navigable waters” are in Florida and the significance of the mean high-water mark or ordinary high-water line in this state.

1. Navigable Waters.

Under U.S. and Florida law, the use of navigable waters is under the regulatory control of the U.S. government, but the submerged lands beneath the navigable waters, within the boundaries of the State of Florida, are owned by the state as trustee for the benefit of all of the citizens of Florida. The state’s submerged lands include all those lands under navigable waters within the state and out to 12 nautical miles from its coastline.

What constitutes navigable waters, however? More waterbodies than you might think are considered navigable waters in Florida because navigable waters are legally defined to include any waterbody, a part of whose length or area could sustain navigation back in 1845 when Florida became a state, and back then, waters were considered navigable if they were passable by canoe, raft, or flat-bottomed boat. Therefore, everything from what you might consider as shallow creeks to the Gulf of Mexico can be navigable waters.

All citizens of Florida have riparian and littoral rights (hereinafter, simply “riparian rights”) to use Florida’s navigable waters for all reasonable purposes, whether for pleasure or for profit, to include travel, transportation, swimming, fishing, and bathing. (One should temper one’s use of that last right, however, so as to avoid violation of the indecent exposure and lewd and lascivious acts laws.) Owners of land adjoining navigable waters have not only all of the preceding riparian rights, but also the additional riparian rights to ingress and egress (enter and leave) between the land and the navigable waters, and the right to an unobstructed, linear view over the navigable waters.

Note: if one digs a hole in one’s own yard, and it fills with water, legal ownership of the “submerged land” at the bottom of the hole does not transfer to the State of Florida. The water is clearly not navigable water, but that is not the deciding factor. The “submerged land” at the bottom of the hole was, and continues to be, privately-owned, despite the influx of water. Therefore, man-made retention ponds and other bodies of water continue to be privately-owned, whether by the owner at the time that they are dug, or, in the case of subdivisions, later by the homeowners’ association as property owned by the association, and, in the case of condominiums, later as common areas owned by the unit owners, but administered by the condominium’s association. Similarly, a properly permitted boat basin dug on privately-owned property next to a river or bay, into which river or bay waters are allowed to flow, continues to be privately owned.

2. The Mean High-Water Mark and Ordinary High-Water Line.

What are the boundaries between waterfront property, called “uplands,” and navigable waters? As mentioned above, those boundaries are the mean high-water mark for tidally influenced waterbodies and the ordinary high-water line for non-tidally influenced waterbodies.

The mean high-water mark for tidally influenced waterbodies, such as the Gulf of Mexico, is the average high tide mark of the water over a 19-year period of time. The ordinary high-water line for non-tidally influenced waterbodies, such as lakes, is less well-defined. It is deemed to be a mark or line on the soil between the shore bank and the water bed, which has a character distinct in respect to a change in the vegetation and the soil’s nature, and the mark must be common, usual, and continued for a long period of time during ordinary years of rainfall.

The importance of these lines is that they are the legal boundaries between (1) navigable waters and the publicly-owned submerged lands beneath them which the public has a right to use, and (2) privately-owned uplands, i.e., waterfront property.

Once one of these lines is legally determined, it cannot be changed by sudden, “perceptible,” actions such as man-made dredging and filling, or hurricanes, which can remove or deposit land along the shoreline and are called “avulsion.” Avulsion will not change the mean high-water mark and will not add land to waterfront property. On the other hand, the gradual, imperceptible addition of sand to the shoreline, called “accretion,” or the increase in dry land by the gradual and imperceptible withdrawal of water from the shoreline, called “reliction,” will change the mean high-water mark and the ordinary high-water line over time, and will add land to waterfront property.

There is one legal exception and one practical exception to the rule that these lines can change as discussed above. If the mean high-water mark is surveyed by the State of Florida and the survey is accepted by the Governor and the members of the Cabinet, acting as the Trustees of Florida’s Internal Improvement Fund (the “TIIF”), it will be designated as an Erosion Control Line. Thereafter, accretion and reliction will not change the Erosion Control Line, whose location supersedes any change in the mean high-water mark or ordinary high-water line. Even if true accretion or reliction has occurred, for the upland’s owner to formally establish ownership of the additional lands caused by accretion or reliction, that owner must obtain from the Governor and the Cabinet as the TIIF, through the Florida Department of Environmental Protection, either a deed of the lands, or a disclaimer of any claim to the lands, from the State of Florida.

Now, you can see why, in order for a property to be “waterfront,” its legal description must extend down to the mean high-water mark or the ordinary high-water line. If a subdivision adjoins a waterbody, its overall legal description must extend to one of these lines before the subdivision’s lots along the water can truly be waterfront. The same can be said about condominium complexes. The overall legal description must extend to one of these lines. Typically, a common area borders on one of these lines, so that all the condominium unit owners, by virtue of their ownership of a fraction of, and easement rights over, all the common areas, have legal access to the water.

3. The Special Case of Canals.

There are three requirements that must be met to ensure that lots or other properties that adjoin canals (boating, not drainage canals) can be used for sustained boating purposes, and therefore justify the higher price paid for those lots.

First, as with other waterfront properties, the legal description of a lot or property adjoining a canal must extend at least to the boundary line or seawall of the canal.

Second, you must determine whether you have a right to use the canal. Canals, by definition, are man-made, typically dug on privately-owned lands. The first way to have a right to use the canal is for the legal description of each canal lot or other property to extend to the center line of the canal, and then a reciprocal easement to use each canal lot owner’s portion of the canal is given to all of the other canal lot owners, and in exchange, each canal lot owner is given the right of ingress and egress for that owner’s boat to travel over every other canal lot owner’s portion of the canal. The second way to have a right to use a canal is for the developer of a subdivision to dedicate the canal or canal system in the subdivision to the use of all of the canal lot owners by conveying ownership of the canal or canal system to the subdivision’s homeowners’ association, in which case, only the canal lot owners and their guests can use the canal(s). In the alternative, the developer could dedicate the canal or canal system to the use of the public, in which case the canal(s) become the property of the public under the control of the applicable government and usable by the public.

Third, you must determine if anyone is responsible for the necessary periodic dredging of the canal and maintenance of its seawalls. If the canal is privately-owned, it is best if there is a homeowners’ association which is responsible for such dredging and seawall maintenance, and which has the power to assess the canal lot owners for their share of the costs. If an association does not exist for a privately-owned canal, then a canal lot owner will have to convince his or her fellow canal lot owners of the need for the work, reach an agreement as to the cost, and obtain their agreement to voluntarily contribute their fair share of the costs, often an extremely difficult task. If the canal is publicly-owned, there should be a special governmental district that is responsible for the dredging and seawall maintenance with the power to specially assess taxes to the canal lot owners to pay for those costs. If no such governmental district exists, then the canal lot owner will have to convince his or her city council or county commission to levy a special tax assessment to pay for those costs, which is also a difficult task when other voters will invariably oppose any increase in their taxes.

E. Does This Really Happen, and What Can Be Done? Show Me Some Examples Below.

Unfortunately (and almost unbelievably), Barnes Walker finds properties that are believed to be, but are truly not, waterfront at least twice every year, and examples of some of these properties and how the problems were cured are below, along with some properties that, at first glance, might not appear to be waterfront, but are waterfront.

In all of the aerials and surveys below, north is at the top, west is to the left, east is to the right, and south is at the bottom.

As you look at these surveys and aerials, try to envision them without the yellow highlighting. Many of the issues that are discussed below are not readily apparent without a close, careful examination of surveys.

Finally, remember that, in the examples below where the subject property was not waterfront, since the legal descriptions did not extend to the water, and the owner’s title insurance insured only those legal descriptions, the title insurance did not insure that the owner had waterfront property. The protection provided by title insurance is limited to only the property described in the legal description.

1. The “Lines, Lines Everywhere” Example.

The survey example above is a complicated one, so let’s look at it first. This is a property close to the Gulf of Mexico. You will see highlighted in yellow an “Edge of Water” line. This line is not controlling – it simply indicates where the surf is, and that line has no legal significance. Also, there are some “Contour Lines.” While these lines may be helpful in determining the elevation of the waterfront property and how much any buildings on it need to be elevated, they do not have significance in determining whether our property is truly waterfront. There is also a Vegetation Line. Is that where the mean high-water mark is? On the other hand, between the Edge of Water line and the bold lines that indicate the boundaries of the waterfront property, you will see lot lines for six lots and a platted avenue, Avenue F. Does that mean this property is not waterfront?

Actually, no. Fortunately for the owner, this is waterfront property – or at least the for the quadrilateral parcel east of the cross-hatched deck facing the Gulf of Mexico. Why? Note that the Erosion Control Line is the west or waterfront boundary line of that quadrilateral. The Vegetation Line may have been or may currently be the mean high-water mark, but remember that the Erosion Control Line (ECL) supersedes the mean high-water mark once the ECL is established. But what about those six lots and Avenue F, all dry land? Again, remember, that once the ECL is established, reliction, or the increase in dry land by the gradual and imperceptible withdrawal of water from the shoreline, will not add back land to waterfront property if that land is seaward of the ECL, which is an exception to the general rule that reliction adds to waterfront property. Here, the land previously covered by the Gulf, which once again has become dry, is still publicly-owned land because of the ECL. (The land probably became dry again, however, not due to reliction, but due to beach renourishment, but such artificial dredging and filling never changes the ECL, the mean high-water mark, or the ordinary high-water line.)

“But wait!” you say. “There is dry land between this property and the Gulf of Mexico! And the bulk of the property is separated from the waterfront portion by a platted alley! How could this be waterfront property?” Here is a common misperception. A property that is waterfront does not mean that its boundary line extends to the actual water, the surf. All a waterfront property’s boundary line has to do is to extend to the mean or ordinary high-water mark or line, because past that line is public property, and as a member of the public, the waterfront property owner has a right to access the actual waters of the Gulf of Mexico. As to the alley, the same concept applies. As a member of the public, the waterfront property owner has a right to cross the alley from one of his or her parcels to the other, so the only disadvantage of the alley is that the property owner cannot build over the alleyway or obstruct it, since other members of the public have the right to use it. However, if members of the public are not using the alley, the waterfront property owner could apply to have the alley vacated, i.e., request the government to give up its ownership of the alley to the owners on each side, which, in this case, is the same owner. (As an aside, note that the city government could demand that the portion of the deck currently encroaching into the alley be removed.)

2. More “Lot, Road, and Alley” Beachfront Properties.

On the preceding aerial, the mean high-water mark of the Gulf of Mexico coincides with the western boundary of the triangle. Once again, we have a platted street that separates the main parcel from the triangular parcel that is waterfront. Note that the street is not improved, i.e., there is no pavement. That does not matter as to rights of the public. The fact that the street is platted on the subdivision’s plat creates a right for the public to use the street. Again, however, as a member of the public, the waterfront property owner has a right to cross the alley from his or her main parcel to the triangular parcel, so the only disadvantage of the alley is that the property owner cannot build over the alleyway or obstruct it, since other members of the public have the right to use it. Nevertheless, a vacation of that street may be an option if the public is not using it. In fact, the owners to the north of this property have vacated the street that lies between their waterfront parcel and their main parcel.

Note that the Erosion Control Line coincides with the west or waterfront boundary line of this parcel on the preceding survey. The mean high-water mark is located further west toward the Gulf of Mexico, but remember that the Erosion Control Line (ECL) supersedes the mean high-water mark once the ECL is established. Again, the two lots and the street between the waterfront property and the Gulf of Mexico are now publicly owned and governmentally controlled because, once more, recall that once the ECL is established, reliction, or the increase in dry land by the gradual and imperceptible withdrawal of water from the shoreline, will not add back land to waterfront property if that land is seaward of the ECL. Here, the land previously covered by the Gulf, which once again has become dry, is still publicly-owned land because of the ECL. (Again, however, the land probably became dry again due to beach renourishment, not reliction.)

3. The “Dock of the Bay” Example.

Fortunately, Otis Redding, who wrote the song “Dock of the Bay,” did not own the preceding property. This example is a survey of a land condominium (a condominium in which the condominium units are parcels of land that look just like lots) on Anna Maria Island adjoining Sarasota Bay. In this example, note that the survey shows the seawall as the eastern boundary of the unit, and then shows accreted lands beyond that to the mean high-water line or mark. This survey is a special mean high-water line survey that was prepared after the surveyor, in his first survey, pointed out that the unit’s eastern boundary (the seawall) did not coincide with the mean high-water line. This discrepancy occurred because the condominium plat’s legal description was contradictory in that it had the unit’s northerly and southerly boundary lines extending east to the “waters of Tampa Bay” (which language would suffice as meaning the mean high-water mark), but then the eastern boundary was described as running along the seawall. The surveyor, in his professional opinion, stated that the discrepancy was due to naturally accreted lands and prepared this second special survey which was then provided to the Florida Department of Environmental Protection acting on behalf of the TIIF, which accepted the survey as documenting that accretion had added the land between the seawall and the mean high-water mark to this waterfront land condominium unit, although the land was covered by water and mangroves.

The developer who platted this land condominium had been deeded the property with a legal description that ran to the mean high-water mark without any contradiction in terms before the seawall was built, and therefore arguably retained the accreted lands because of the plat’s contradictory legal description. Therefore, a quit claim deed for the accreted lands also had to be obtained from him by Barnes Walker.

With the preceding property, to ensure that it was waterfront, Barnes Walker had to both document that the State of Florida agreed that the additional land was, indeed, accreted and, therefore, did not belong to the State, and ensure that it was not titled in the developer’s name.

4. “A Canal Too Far” Examples.

The preceding survey and the following one are examples of lots not extending to the edge of canals. As mentioned above, since canals are dug typically on private lands, if there is a gap between a lot and the canal, that means that a private person or company owns that gap and could fence off the lot owner from the canal or extort money from the lot owner in exchange for ownership of the gap. In most cases, however, the person or company retaining ownership of the gap is the former developer and has done so unknowingly. We speculate these gaps occur because the plats are created and recorded prior to the digging of the canals, and the canals’ seawalls are not built exactly on the lot lines that are supposed to coincide with the canals’ boundaries.

The gap on the preceding survey had actually been found in the past, and the developer had conveyed by quit-claim deed the gap to a prior owner in title, but because of sloppy work by a commercial title company, when that owner sold, the title company used the prior owner’s original legal description and did not add the legal description from the quit claim deed. Unfortunately, the prior owner had passed away leaving two children, one of which had also passed away, leaving two grandchildren. Neither the prior owner’s estate nor the prior owner’s deceased child’s estate had been probated, so the two estates had to be probated and court orders recorded to document which heirs had title to the gap, so that the gap could be conveyed by these heirs to the current owner. This owner was very fortunate in that the heirs did not demand any monies for conveying the gap to the owner. However, the owner had to pay the attorney’s fees and costs to probate the estates.

For the gap between the lot and canal in the survey below, we were able to obtain a deed for the gap from the developer. You can barely see it, but the edge of the canal runs along the northwesterly edge of the wood dock, but the legal description stopped at the seawall, so the gap is under water but includes all of the dock. Someone was probably confused and believed that, since the gap was under water, it did not need to be conveyed. However, that left the gap, consisting of the lot owner’s dock and the land beneath it, in the developer’s name. (Remember, submerged lands beneath canals are still privately owned, when dedicated by the developer.)

5. The “No Reserve” Example.

We all know how important it is to have monetary reserves, but the owner of the preceding property initially did not own a narrow strip of land called the “Reserve.” The main lot was north of the street that runs along the Manatee River, and the strip of land called the “Reserve” lies between the street and the river. Although we know that the owner, as a member of the public has a right to cross the street from his or her lot, without ownership of the reserve, the owner has no access to the Manatee River or right to build a dock into the river. How did this happen? Although the prior owner had title to the Reserve, when the owner purchased the property and used a commercial title company to close the transaction, the title company decided, for some unknown reason, to delete the legal description’s reference to the Reserve in the deed to the owner, which meant that the prior owner retained ownership of the Reserve.

Fortunately, the prior owner could be found, was cooperative, and signed a deed prepared by Barnes Walker conveying the Reserve to the owner. The result was the supplemented legal description and survey on the next page which added the Reserve to the legal description and depicted the Reserve in the survey’s drawing.

Again, the owner was very lucky. The prior owner could have taken the position that they intentionally kept ownership of the Reserve and could have tried to force the owner to pay additional monies for the Reserve. If that had happened, the owner’s only recourse would have been to sue the seller, but to succeed, the owner would have to hope he or she could find the real estate contract with the seller and that the contract’s legal description included a reference to the Reserve.

Practice Tip: Many real estate contracts, when the legal description is long, simply have the beginning of the legal description followed by the words “[Long Legal].” If that was the case with this owner’s contract (because the seller was cooperative, the owner did not have to find the contract), the owner would have had a difficult time winning the lawsuit. Don’t take shortcuts with legal descriptions.

6. Other Examples on the Manatee River and on the Gulf of Mexico.

Although we do not have surveys for them, there are other properties that we have discovered were not waterfront.

For example, we discovered a property on the Manatee River whose boundary line did not extend to the river’s mean high-water mark (in this area, the river was tidally influenced). This property was made waterfront by applying for and obtaining a deed for the intervening land between the property and the river from the Governor and Cabinet as the TIIF.

A second example is a property that currently appears to front on the Gulf of Mexico. However, the surveyor has placed the mean high-water mark of the Gulf far to the west of the western-most boundary of the property. There are two possibilities as to how this occurred.

First, it may be that the true mean high-water mark historically was far closer to the property, in which case the surveyor is not taking into account that natural accretion or reliction has moved the mean high-water mark westward to the place where the surveyor believes it is currently located. In that case, the accretion or reliction has added the intervening land between the property and the Gulf of Mexico to the property. The surveyor may not be accounting for accretion or reliction because, without a deed or a disclaimer from the TIIF, the State of Florida could assert ownership, in response to which the property owner might sue the surveyor for malpractice.

Second, it is possible that some prior owner’s surveyor or attorney was derelict in properly describing the west boundary of the property that adjoined the mean high-water mark of the Gulf of Mexico. For example, at the time of an old survey, the mean high-water mark may have been 100 feet from the east boundary of the property, so the surveyor simply described the northern and southern boundaries as extending 100 feet from the east boundary to create the west boundary, rather than creating the western boundary by having the northern and southern boundaries extend to the mean high-water mark and then running the west boundary along the mean high-water mark. In such a case, if accretion or reliction moves the mean high-water mark 25 feet to the west, then the mean high-water mark becomes separated from the property’s western boundary because it has been described as being only 100 feet from the property’s eastern boundary. As a result, the owner’s right to the additional 25-foot gap will somehow have to be documented.

7. The Danger of “Water View.”

So, you say, “I can just avoid all of these attorneys’ and surveyors’ fees by marketing the property as ‘water view property.'” Be careful. If there is privately-owned, intervening land between the property in question and the waterbody, remember that private owner could possibly construct a building, or at the very least, a solid fence, to obstruct that view. Then, the buyer of the property could claim that you misrepresented the property, since the buyer no longer has a water view.

F. Conclusion.

We hope this article has provided you with useful information as to how a property is waterfront from a legal standpoint, the dangers of not investigating whether a property actually adjoins a waterbody before entering into a contract, and the difficulties, despite a close and careful examination of the property’s survey, in determining whether the property is truly waterfront.

If you have any questions regarding easements, please do not hesitate to call us at 941-741-8224 or e-mail us (just use the first letter of our first name followed by our last name at BarnesWalker.com). As always, we will answer your questions at no charge.

Important Note: The information contained in the preceding Barnes Walker Educational Series article is summary in nature, does not cover all aspects of the law as it pertains to public beaches, and is sent for educational purposes only to you as a client or a member of the Realtor® Association of Sarasota and Manatee, Inc., of which we are a proud affiliate member. This article should not be considered as legal advice for your or a client’s situation, if any, nor is it intended as specific or detailed advice, as we do not have any information specific to your or a client’s circumstances. Further, the preceding article is not intended to be an all-inclusive discussion of public beaches, but a guide to the same, and there may be other matters not described in the article that may impact your or a client’s particular situation. Therefore, always seek legal advice regarding your or a client’s unique circumstances. Finally, this article is intended as a public service and is not a solicitation seeking legal employment of our firm by you or any clients.