The sunsets are spectacular, the kids can walk down to the water, and you’re the envy of all your friends. There’s no way you thought owning a waterside dream home would be a nightmare until you find yourself asking, “Who’s on my property?” and “Where is my property line?”
As a species, humans haven’t strayed too far from the water when it comes to commerce, vacations, and housing. The average person won’t care about the first two when it comes to rights, but lucky waterside landowners need assurance that they do indeed own what they were promised.
Words in deeds are waterfront owners’ best friends. For uniformity and reliance, certain phrases are required when conveying waterside property — “to the high water mark,” “riparian rights,” and “boating and bathing rights” are common and specify what is conveyed.
If your property runs to the “high water mark line,” you own the beach, and no one has a right to cross or disembark on your upland property unless they have an easement (a right to cross or otherwise use someone else’s land for a specified purpose without conveying ownership). However, the foreshore (the land between the high and low water marks) is subject to a public easement, meaning you cannot stop anyone from walking along the beach or stopping to sunbathe by the water.
Furthermore, waterfront property ownership has another drawback: You cannot exclude someone from boating by, even if that means they can look right into your shade-free bedroom! Once legally on the water, anyone has the right to cross any portion of a natural waterway or body.
Docking, bulkhead, and boat slip rights are also controlled by language, though they may be granted by the deed, ordinance, or via an easement. These are often for environmental reasons, though zoning sometimes plays a part. For example, the municipality, the state, or the federal government may allow beach rights but prohibit owners from erecting a dock in a flood zone or sinking a mooring in an area with a threatened sea floor.
If a home is part of a development, the entire development may have a filed easement spelling out who has rights of access to the water and/or allowing all owners common access to boating and bathing rights. This supersedes a seller offering “exclusive rights,” as an owner cannot convey more than is legally theirs. A thorough title search will turn up the true limits of the seller’s possession.
Before zoning laws were enacted, phrases in deeds and filed easements were the only way to exercise control over the uses of real estate. They still continue to control adjoining property owners and the public. As an example, imagine adjoining waterfront homes with vegetation running along the high water line. No one fences in their immediate backyards (by choice or by prohibition), but can you really expect privacy in your own yard if you sunbathe nude? No and yes.
Adjoining owners have the same rights to reach the beach that you do, so if the next-door neighbor stands on their own property, what they see is your problem. However, if a member of the public strays away from the foreshore and bursts through the vegetation, you can call the local police. (If the peeper is savvy, be prepared for a defense that depends on the high water mark moving over geological time).
If a river runs through your property, can you dam it? Curse all you want, but you can’t stop your neighbor from canoeing past your Sunday barbecue. Properties adjoining a river have a right to the natural flow of the water until it reaches a navigable waterway. That being said, you might be able to divert a stream to create a waterfall in your backyard if you return the stream in the same flow down towards a river or an ocean.
Additional considerations:
When it comes to manmade canals and lagoons, look to your deed. If it specifies running to or along the high water line, you have the right to use the canal to and from a navigable waterway, though you may not have a right to build a dock or a slip unless your town or village permits it. Another consideration: many manmade bodies of water don’t have tides, so check that out before purchase and be sure the deed specifies another measurement.
Size matters before you buy a waterfront parcel or home. Imagine a beachfront community of winding and turning houses, with each property having different frontage and perhaps being at competing angles. One homeowner has a 20-foot boat on 60 feet of frontage, and the next-door neighbor, with only a 20-foot frontage, yearns to buy a 60-foot yacht. Rights extend into the water proportional to footage; while the wannabe yacht owner has the right to cross any portion of the water, they may only occupy 20 feet in width extending into the water.
When in doubt about your rights along the water, speak to your attorney and share your concerns, paperwork, and a recent aerial view of the property (usually available online).
Joel Agruso contributed to this article, which is based on general knowledge of New York laws and rulings. This is not a substitute for legal advice; it is always best to check with local counsel to protect your rights.
