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Wednesday, June 8, 2016

FLORIDA RIPARIAN RIGHTS ISSUES

FLORIDA RIPARIAN RIGHTS ISSUES
Waterfront property in Florida is very desirable, be it for boating access or an incredible view of the water.  Despite the sometimes exorbitant price paid for a waterfront piece, I am always amazed at how many prospective purchasers fail to investigate the potential legal pitfalls that come along with owning waterfront property.  In far too many instances six months or a year after closing, buyers will first become aware of an issue involving the location of a dock or with their view of the water being blocked.  Such issues involve what are known as riparian rights Riparian rights disputes come in many different forms and frequently result in costly litigation between neighbors.  It therefore goes without saying just how important it is for potential purchasers to investigate possible riparian rights issues before they buy waterfront property. 


Who has riparian rights?
Title to all non-deeded submerged land in Florida rests with the State of Florida, and is held in trust for the public.  This is known as “the Public Trust Doctrine”, and is codified in Article X, section 11, of the Florida Constitution.  The State of Florida therefore owns the submerged land water ward of the ordinary high water mark. 
In order to possess riparian rights, an individual must own upland property which extends to the ordinary high water mark.  Riparian rights extend water ward from the ordinary high water mark. 
Thus, a conveyance of uplands bounded by navigable waters carries riparian rights in the adjacent waters.  These riparian rights are derived from both common law, and the Florida Statutes.

What are riparian rights?
Riparian rights are those rights incidental to ownership of land contiguous to and abutting navigable waterways.   Riparian rights include the right of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law (right to view being perhaps the most contentious).
Riparian rights convey no title to the submerged lands beneath the waters and therefore are not “real property”.  Riparian rights are rights to use the water and nothing more. Riparian rights are merely a preferred right of purchase, and do not convey any title.
Riparian rights are not owned by the riparian landowner, they are an appurtenance to, and inseparable from, the riparian land.   Riparian rights may only be severed from the uplands by an "express bilateral agreement to do so."   Thus, any deed conveying riparian uplands carries riparian rights unless those rights are expressly reserved.

How are riparian rights delineated?
Some fifty years ago, in Hayes v. Bowman the Florida Supreme Court declared:

“We therefore prescribe the rule that in any given case the riparian rights of an
upland owner must be preserved over an area "as near an practicable" in the
direction of the Channel so as to distribute equitably the submerged lands
between the upland and the Channel. In making such "equitable distribution"
the Court necessarily must give due consideration to the lay of the upland shore
line, the direction of the Channel and the co-relative rights of adjoining
upland owners.”

In other words, when riparian rights issues are presented to a Court for resolution the main goal is to make certain each neighbor receives “an equal piece of the pie”.

Conclusion

Due to the multitude of issues that can arise, this blog is not intended as legal advice or to be a comprehensive discussion of Florida riparian rights law.  Rather this blog is just a general outline of the concepts and key elements of riparian rights law that are likely to command attention.  If you are looking at purchasing waterfront property or are confronted with a riparian rights problem, please do not hesitate to contact me to discuss the specifics of your case.