Rights and Wrongs
The Fifth Amendment requires compensation for any takings of land. The public, however, has a legal right to access the ocean, based on a doctrine known as the public trust. These conflicting sets of rights have spawned legal disputes over access to and control of beachfront property. “The cases are becoming more frequent,” Amerikaner says. “There are still unresolved issues, and a lot of money at stake.”
Rules governing waterfront access vary by state. California, for instance, allows beachgoers to sit below the dry sand of the mean high-tide line, while Massachusetts requires the public to move along. “Our law was based on the Colonial Ordinance of 1641 to 1647,” says Patrick Butler, a land use attorney with Nutter McClennen & Fish in Hyannis, Mass. “It allows the public to use the coastal waters for ‘fishing, fowling and navigation,’ below the mean high-tide line. That can be a little fuzzy at times.” But in 1974, Butler notes, the Supreme Judicial Court of Massachusetts ruled that a walk on the beach is not a right under the public trust doctrine.
Owners of beachfront property on Cape Cod tend to separate their beaches by wooden snow fences, but easements pose a problem because the public often wanders onto private beaches from adjoining boat launches, ramps or paths. Butler recalls that one owner was so incensed that he spray painted a line in the sand to differentiate his beach from a public easement. Clearly, the best way to avoid this level of frustration is to perform thorough due diligence on any property prior to purchase. “Hire an experienced land use attorney who knows the local land ordinances and can scour the title records for easements or any other encumbrances,” advises Dwight Merriam, a land use litigator with Robinson & Cole in Hartford, Conn., and author of the newly published Complete Guide to Zoning.“You never really know what you’re going to find,” says Mark Steiner, one of Merriam’s clients. “We found an easement that allows a farmer to collect seaweed on a piece of waterfront property we are currently developing.” Steiner, president of HealthCare Consulting of Farmington, Conn., has been involved in prime land acquisition and development for 35 years. He has dealt with several easements, and knows the potential financial and emotional pain they can cause. “It’s a heck of a thing to find after you buy the property,” he says, reiterating Merriam’s advice about due diligence.
While the law surrounding easements may offer no easy answers, not all stories end unhappily—or expensively. Steiner worked out a mutually beneficial agreement with the state of Connecticut for a conservation easement allowing public access in exchange for the state maintaining the parking lots and roads and, more importantly, prohibiting development of the land.
Unpleasant Surprises
Some easements may not reveal themselves with even the most exhaustive title searches. “Let’s say you buy 100 acres of rural land, and the title appears to be free of all encumbrances,” says John Delaney, a land use litigator at Linowes and Blocher in Bethesda, Md. “But a neighboring family has been using a dirt track across it to get to and from the highway for 30 years.” That longstanding use might not be reflected in the official land records, but it could be a legally enforceable prescriptive easement or easement by user. Prescriptive easements, Delaney explains, allow individuals or the public to use land for access to and from particular points, without either the explicit or implied permission of the owner. In California, five years is long enough to establish a prescriptive easement. In Texas, it takes 30 years. In any case, if they are present on a parcel of land, they can be time-consuming and expensive to undo.
| One owner was so incensed that he spray painted a line in the sand to differentiate his beach from a public easement. |
To identify such obscure access rights, Delaney recommends working with both a land use attorney and a civil engineer, who will survey the property and become intimately familiar with it. “He may see an old dirt track that is not on the title that connects a cluster of homes,” Delaney says. Such a track could qualify as a prescriptive easement.
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