riparian property rights

Copyright 2016 by James T. Lang (all rights reserved)

WATERFRONT HOMES: SPECIAL CONSIDERATIONS

RIPARIAN PROPERTY RIGHTS

Presentation to Hampton Roads REALTORS AssociationApril 14, 2016

by Jim Lang, Esq.

Law Firm of Pender & Coward, Virginia Beachwww.pendercoward.com


Industrial Waterway


Where is the property line?

• The bed of a non-navigable waterway is owned by the riparian owners – Unless the deeds establish a different property line, the

boundary is the centerline of the non-navigable waterway• For navigable waterways “the mean low-water mark”

is the property line (Va. Code §28.2-1202)– Mean low-water mark– Accretion– Erosion– Shifts with the shifting sands


Who owns the land beneath the water?

• Va. Code §28.2-1200– All the beds of the bays, rivers, creeks and the

shores of the sea within the jurisdiction of the Commonwealth

– Property of the Commonwealth unless conveyed by special or compact

– May be used as a common by all the people of the Commonwealth for fishing, fowling, hunting, and taking and catching oysters and other shellfish (see also Va. Const. Article XI, §4)


Land beneath water can be privately owned

• The bed of non-navigable streams• Dry land owned in fee simple that is excavated and filled with

water (stormwater pond, man made canal, artificial lake)• Kings Grant . . . dubious• Pre-2007 conveyance by Commonwealth• Va. Code §28.2-1200.1

– Commonwealth shall NOT convey fee simple title to state owned bottom lands covered by waters

– Exception: State-owned bottom lands that have been lawfully filled

– Commonwealth can grant a lease or easement


Who owns the water and things that live on and in the water?

• Water withdrawal– Riparian owner if ˂300k gallons/month– VA DEQ if riparian owner wants ˃300k gallons/month

• US Army Corps of Engineers if riparian owner wants to install an obstruction

• VA DEQ, US Army Corps of Engineers and/or US EPA if riparian owner wants to discharge pollutants

• VA has authority to issue permits for fishing, oystering, fowling


What are riparian property rights?Five benefits that accrue to the owner of land adjacent to a navigable river, bay, creek or the ocean:

• The right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water.

• The right of access to the water, including a right of way to and from the

navigable part. • The right to build a pier or wharf out to navigable water, subject to any

regulations of the State. • The right to accretions or alluvium. • The right to make a reasonable use of the water as it flows past or laves the

land.


What and where is the Riparian Zone?

• measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled (use shore line created by Mother Nature . . . not the man made portion created with fill)

• measure the length of the line of navigability, and give to each proprietor the same proportion of it that he is entitled to of the shore line

• draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore


What is value of riparian property rights?

• Lynnhaven Dunes Condominium Assn v. Virginia Beach, 284 Va. 661, 673 (2012): The littoral or riparian nature of property is often a substantial, if not the greatest, element of its value. This is true whether the owner uses his access to the sea for navigation, fishing, bathing or the view.


What is the value of riparian property rights? (continued)

• Nonscientific ballpark residential estimate– Homes listed or sold on or near Linkhorn Bay in 2015 – Waterfront with view of the bay $1.6M– Waterfront on a canal $800k

• Somewhat more scientific ballpark industrial estimate – 2 acre parcel on inlet of Elizabeth River in Norfolk– Value of land $230k/acre fee simple– $110k (48%) was value of riparian property rights


Miscellaneous

• No “water lots” in navigable waters• Can convey riparian property rights• Riparian Property Rights used in eastern states

where water is not yet scarce• Western states, where water is scarce, use the

law of “prior appropriation”


Additional Concerns for Waterfront Property Owner

• Chesapeake Bay Preservation Act– http://www.pendercoward.com/index.php/

resources/opinions-a-observations/340-environmental-law-and-the-chesapeake-bay-preservation-act-where-local-knowledge-is-a-must

• Wetlands• Coastal Primary Sand Dune Protection Act


Questions!

Jim LangPender & Coward Law Firm

Virginia Beach502-7326 (w) & 777-6382 (mobile)

[email protected]

mailto:[email protected]

riparian property rights

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