Imagine a waterfront house with a large privacy fence that blocks all view of the water — its a strange image.  If there is no view, the property loses most of its “waterfront” essence and most of its value, so somehow, somewhere, the law must protect a waterfront owner’s view.  But I regularly hear other attorneys and government officials recite the old saw: “there is no right to a view.”  They are wrong in some ways, but they do have good reason to say that.  Maryland law (and the law in most coastal states) is silent about the water view.  Concerning riparian rights, Maryland’s court says:

The term “riparian rights” indicates a bundle of rights that turn on the physical relationship of a body of water to the land abutting it….  This bundle includes at least the following rights: (i) of access to the water; (ii) to build a wharf or pier into the water; (iii) to use the water without transforming it; (iv) to consume the water; (v) to accretions (alluvium); and (vi) to own the subsoil of nonnavigable streams and other “private” waters. To be sure, access to the water is a primary asset of riparian rights.  Gunby v. Olde Severna Park Improvement Ass’n, Inc., 174 Md. App. 189, 239-40, 921 A.2d 292, 322 aff’d, 402 Md. 317, 936 A.2d 365 (2007).

The view wasn’t an issue in the Gunby case, but this is an accurate summary.  Florida law, for example is much different: “Upland owners hold several special or exclusive common law littoral rights: (1) the right to have access to the water; (2) the right to reasonably use the water; (3) the right to accretion and reliction; and (4) the right to the unobstructed view of the water.” Walton Cnty. v. Stop Beach Renourishment, Inc., 998 So. 2d 1102, 1111 (Fla. 2008).  Practice in Maryland would be much easier if the law specifically set out protection for the view.

Are Maryland property owners without protection then?  The answer is no, the view is protected, but getting to that can be a bit convoluted.  First and foremost, “access to water is a primary asset of riparian rights.”  Most things that obscure the view, such as a fence or wall or, to a lesser degree plantings, also obstruct access and therefore can and should be challenged.   (Need more on potential issues and solutions for waterfront purchases?  Look here.

A pier typically obscures the view and water access to a lesser degree than a fence — but it seems clear that someone else should not be able to build one in front of a lot owned by someone else.  This brings up the riparian owners’ right “to build a wharf or pier into the water.”  When it comes to someone else other than the owner putting in a pier, this is what I consider a negative right.  If the riparian owner as the affirmative right to build a pier, it follows that they also have the negative right to prevent a non-owner from building a pier.  This right is also captured in the Maryland Code (and most County and City zoning provisions) insofar as it is only the owner that has the right to build a pier in front of waterfront property.  The owner “may make improvements into the water in front of the land to preserve that person’s access to the navigable water …. After an improvement has been constructed, the improvement is the property of the owner of the land to which the improvement is attached.” Md. Code Ann., Envir. § 16-201.

And so, there are ways to protect a riparian owner’s view of the water, even if that right is not specifically laid out in Maryland’s cases or statutes.   If you are not an owner, however, the options to protect a view are drastically more limited — that will need to be a topic for another article.

If you are in a situation where you are concerned about a neighbor infringing on your view — send me an email at dschwenk@baylawllc.com or give me a call at the number to the right.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law in 1997 and has been in private practice in Maryland ever since.

What are Riparian Rights?

Piers, Waterfront and Riparian Rights

To hear Mr. Schwenk discussing riparian rights on Real Estate Today Radio – click here.

When you own waterfront, you get more than just property.   You get a view, you get certain risks (like flooding and erosion) and you get what are known as riparian rights.   A waterfront owner does not own the water, and does not own the land under the water, or even the land below the tide-line, but does own access to the water.   Such a right, however, can be encroached upon by a neighbor’s pier, or transferred to a community association for the rights of the community, or otherwise impeded. These situations can create great conflict within a community, and have grave and permanent implications to the economic and personal interests of property owners. The text below provides a general overview of riparian rights, based on Maryland law.  Riparian rights in the Eastern United States are very different from those in the West, and this article focuses on the East  For specific questions, please contact us directly.

Maryland’s Court of Appeals has described riparian rights as follows:

“It is well established that the title to land under navigable water is in the State of Maryland, subject to the paramount right of the United States to protect navigation in the navigable waters.

The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.

When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a ‘franchise-a vested right, peculiar in its nature but a quasi property of which the lot owner cannot not be lawfully deprived without his consent.’

When the lot owner makes improvements in front of his lot, complete title then vests in him in the improvements provided it is in front of his lot and does not appropriate the riparian rights of his neighbors.”

Parsing the language, one finds the following principles.

1. The State owns the land under the water, and the United States has an overriding interest in preserving public navigation.

2. The waterfront property owner has the right to accretion (such as a beach deposited by currents) and access, but a government may regulate access such as piers and wharves to assure that public rights are protected.

3. The right to extend and improve, where granted, transfers with the property.

4. The right to extend and improve does not allow a landowner to intrude on his neighbor’s rights.

5. The riparian owner has the “right of access” to and from the waters.

Since everyone has neighbors, the relative rights of one’s neighbors can become an issue, as can the extent of the government’s right to regulate. And such issues can and do evolve into open disputes. If you find yourself in conflict, there are some immediate steps that must be taken. First, be aware that your rights could be foreclosed by the statute of limitations. In Maryland, the general statute of limitations is 3 years. In some cases, however, a contract may extend or shorten the period in which action must be taken. It is even possible (through a doctrine known as adverse possession) for title to pass after 20 years of possession. Second, document the facts: take pictures; obtain copies of and permit applications; find public records. Many cases are determined by who marshals the facts first – the head start can be crucial. Also – and this may need to be your first step – consult a lawyer. A lawyer’s time can be expensive – but not when compared to the cost of losing forever the rights attendant to waterfront property.

In Maryland, there is an open question about whether a water view can be protected from being blocked by a neighbor.  A New York court has recently looked at this question in City of New York v. Gowanus Industrial Park.  This case raises the question of when and how a riparian rights holder is protected from someone else’s infringing upon their view.   The actual case is reproduced in its entirety below.  It confirms the basic tenants of riparian rights law — the riparian owner (in this case the City) has the right to require that a neighbor remove a fence or other structure which interferes with their riparian rights.  This case confirms that one of those rights is the right to a view of the water.  Its most interesting feature may be the fact that Gowanus actually owned the bottom of the basin in question, as well as the riparian rights along the other shore, and it therefore had some rights to limit the City’s use of and access to the waters.

— N.Y.S.2d —-, 2009 WL 2960912 (N.Y.A.D. 2 Dept.), 2009 N.Y. Slip Op. 06498

Supreme Court, Appellate Division, Second Department, New York.

CITY OF NEW YORK, respondent,
v.
GOWANUS INDUSTRIAL PARK, INC., appellant.

Sept. 15, 2009.
STEVEN W. FISHER, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO, and L. PRISCILLA HALL, JJ.

*1 In an action, inter alia, for a judgment pursuant to Environmental Conservation Law § 15-701(6) declaring that the defendant’s construction of a wall along the northern terminus of the Henry StreetBasin unlawfully interferes with the plaintiff’s riparian rights in and to the Henry Street Basin, and a mandatory injunction compelling the plaintiff to remove that wall or cause it to be removed, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Miller, J.), dated June 27, 2008, as granted those branches of the plaintiff’s cross motion which were for summary judgment on the first cause of action declaring that the plaintiff has riparian rights in and to the Henry Street Basin, on the third cause of action declaring that the wall unreasonably interferes with the plaintiff’s riparian rights in and to the Henry Street Basin, on the sixth cause of action declaring that the wall constitutes a public nuisance, and for a mandatory injunction compelling the plaintiff to remove the wall or cause it to be removed, and to restore access to the Henry Street Basin, within 90 days of service of that order upon it, unless some other satisfactory arrangement could be reached between the parties to assure the plaintiff of its right, as a riparian owner, to gain access to the Henry Street Basin.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate declaratory judgment.

In 1997 the defendant, Gowanus Industrial Park, Inc. (hereinafter GIP), acquired two parcels of real property-one consisting of certain bottomlands of the Henry Street Basin (hereinafter the Basin), a navigable body of tidal water, and another located above water level on the western side of the Basin.The plaintiff, City of New York, owns two parcels of real property located on the northern side of the Basin, which it operates as a park. In February 2002 GIP constructed a wall measuring 18 feet in height and 200 feet in length on the northern side of the Basin. The City commenced this action seeking, inter alia, the removal of the wall on the grounds that it unreasonably interfered with its riparian/littoral rights to the Basin, was unlawfully constructed, and constituted a private and public nuisance.

GIP moved for summary judgment and the City cross-moved for summary judgment. In an order dated June 27, 2008, the Supreme Court, insofar as relevant to this appeal, granted those branches of the City’s cross motion which were for summary judgment on the first cause of action declaring that it has riparian rights to the Basin, on the third cause of action declaring that the wall unreasonably interfered with its riparian rights to the Basin, on the sixth cause of action declaring that the wall constituted a public nuisance, and for a mandatory injunction compelling the plaintiff to remove the wall, or cause it to be removed.

*2 The City demonstrated its prima facie entitlement to judgment as a matter of law on its first cause of action for a judgment declaring that it possessed riparian rights in and to the Basin by establishing that its property directly abutted the Basin, a navigable waterway ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566, 571; Tiffany v. Town of Oyster Bay, 234 N.Y. 15; Mascolo v. Romaz Props., Ltd., 28 AD3d 617, 618; Bravo v. Terstiege, 196 A.D.2d 473, 475; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Specifically, the City submitted, inter alia, Letters Patent for its property, indicating that it shares a common boundary with the Basin, and a certified 2002 City survey, which was also authenticated by affidavit, confirming that the City’s property directly abuts the Basin.

In opposition, GIP failed to raise a triable issue of fact as to the City’s entitlement to a declaration of its riparian rights. Specifically, the 2001 survey submitted by GIP was not in admissible form, as the 2001 survey was unsigned, uncertified, and submitted without an affidavit by the preparer of the survey, and thus could not support its contention that there was a strip of land between the Basin and the City’s property ( see Miller v. Powers, 53 AD3d 1125, 1127-1128; Dewey v. Gardner, 248 A.D.2d 876, 878).

The City’s right of access as a riparian owner is not absolute, but is qualified by GIP’s rights as the owner of the Basin ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d at 572; Hedges v. West Shore R.R. Co., 150 N.Y. 150, 158). When the parties’ rights are in conflict, the court must strike the correct balance ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d at 572). Additionally, what constitutes reasonable access is determined on a case-by-case basis, considering what is a reasonable, safe, and convenient accommodation of the riparian interests of the upland owner, here the City ( see, Town of Hempstead v. Oceanside Yacht Harbor, Inc., 38 A.D.2d 263, 264, affd 32 N.Y.2d 859).

In this regard, the City satisfied its prima facie burden of demonstrating that the wall unreasonably interfered with its riparian right of reasonable access to the Basin ( see Gucker v. Town of Huntington,268 N.Y. 43, 47-48; Tiffany v. Town of Oyster Bay, 234 N.Y. at 18-19; Arnold’s Inn, Inc. v. Morgan, 35 A.D.2d 987, 988). In support of its cross motion, the City submitted the affidavit of a manager of the City Parks Department and photographs of the wall which demonstrated that the wall-which was originally 18 feet in height and extends along the entire waterfront boundary-completely obstructs its riparian right of access to the Basin. In opposition, GIP failed to raise a triable issue of fact as to the reasonableness of the dimensions, placement, and configuration of the wall. GIP did not submit any evidence in admissible form to support its conclusory and unsupported allegations that the wall was necessary for public safety and to prevent trespassing ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

*3 Contrary to GIP’s contentions, the mandatory injunction compelling it to remove the wall, or cause it to be removed, was not overly broad. A riparian owner, such as the City, has a right to equitable relief against material obstructions, including the abatement of an obstruction already constructed (see, Tiffany v. Town of Oyster Bay, 234 N.Y. 15).

GIP’s remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the City of New York has riparian rights in and to the Henry Street Basin, that the wall erected by the defendant along the northern terminus of the Henry Street Basin unreasonably interferes with the City’s riparian rights in and to the Henry Street Basin, and that the wall constitutes a public nuisance ( see Lanza v. Wagner,11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

N.Y.A.D. 2 Dept.,2009.
City of New York v. Gowanus Indus. Park, Inc.
— N.Y.S.2d —-, 2009 WL 2960912 (N.Y.A.D. 2 Dept.), 2009 N.Y. Slip Op. 06498

END OF DOCUMENT