Along the coastline of the United States, such legal rights have served as ammunition in an increasingly acrimonious war pitting the public against owners of extremely valuable beachfront property. Without performing thorough due diligence, those considering buying coastal real estate or property that abuts public land may unwittingly find themselves locked in expensive legal battles. Victory for landowners is hardly guaranteed. “You don’t want to pay $20 million for a beach house and find out you have to allow the public to walk through your yard,” says Elizabeth J. Giffin, a land use attorney in Los Angeles.

Nowhere has this struggle been more contentious than along the 27 miles of coastline that make up Malibu, Calif., the famous beach city northwest of Los Angeles. The most high-profile case involves David Geffen, legendary music producer and partner in DreamWorks SKG studios, who has been in a protracted legal fracas to prevent the establishment of an easement across his Malibu estate down to the sands of Carbon Beach.

A few miles away, on Broad Beach, the Trancas Property Owners Association has, in the past, employed security guards on ATVs to chase off sunbathers and surfers who turn into trespassers by going beyond the mean high-tide line—the mark where public property ends and private beaches begin in California. Last summer, the battle for beach access grew so heated that the California Coastal Commission, the state agency charged with maintaining the Golden State’s beaches, ordered homeowners to disband their security force and take down some of the many no-trespassing signs. The agency even published an online aerial map that showed each homeowner’s plot, noting any lateral easements that allow the public to use the beach above the mean high-tide line. The property owners association has sued, and its case is currently pending.

Steve Hoye, director of Access for All, a group that seeks to guarantee public access to Malibu’s beaches, says that the creation of harassment-free public access for Broad Beach and Carbon Beach is inevitable. “We will open up Carbon Beach,” Hoye says, adding that another Carbon Beach homeowner, about a half-mile from Geffen’s property, has given his permission for a future public easement. “It’s only a matter of time.”

TOP VIEW Public easements across our property can compromise our privacy and lower land values. Because laws that govern easements are not easily challenged, our best defense is to perform thorough due diligence to identify public rights of way before we buy. Otherwise, prickly and prolonged negotiations may be our only option.

Hoye wants a public easement across Geffen’s property and may already have it in hand. Hoye’s group holds 20 offers of dedication, which are made by waterfront property owners to the California Coastal Commission to allow public easements on their properties in exchange for building permits to expand homes. Among them is a 1984 offer of dedication for a public easement on Geffen’s property, which Access for All acquired in 2002, two years before it was set to expire. “We are trying to balance the fears and worries of the property owner with the public’s right to access,” Hoye says. “We have a very sensible and sensitive plan for a public easement on Mr. Geffen’s property. We want to show people that public easements won’t necessarily lower their property values.”

Clearly, what is sensible and sensitive to some is an invasion of privacy and a costly imposition to others. Steven Amerikaner, a real estate attorney at Hatch & Parent in Santa Barbara, Calif., argues that public easements do, in fact, lower property values. “It is very difficult to challenge existing public easements,” he says, advising that the best way to deal with them is to avoid them altogether. “Cases involving easements really are buyer-beware stories.”

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.

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.

According to Merriam, dealing with hidden easements can be daunting, but not insurmountable. “First, you should get a title insurance policy based on a survey that specifically protects the owner from the claim of a prescriptive easement,” he says. “That will help you defend yourself against a claim and also compensate for the loss of the property’s value.” One of the more straightforward ways to keep a prescriptive easement from becoming legally binding is to post no-trespassing signs (which some states require by law), raising gates and calling police on trespassers. This creates an official paper trail of a landowner’s attempts to deny access.

A more effectual option might be to actually grant an easement—of sorts. If an owner grants permission to use his property, he effectively cancels a trespasser’s claim for a prescriptive easement. “If I have a written agreement in the form of a license,” Merriam says, “I can revoke that license at will. Licensing lets you list conditions such as the number of people allowed to use the easement, when it opens and closes and other factors to ensure your security and privacy.”

In other cases, public easements can be deemed legally abandoned or discontinued if they are not used for a prolonged period of time, as was the case with Steiner’s long-deceased seaweed farmer. Merriam assisted with a recent case in which a New England village’s board of selectmen called a town meeting to officially discontinue an easement. “One way to get rid of these things is just to get the government to fix it,” he says. “Sometimes it takes an act of the local legislature, and other times the government can sell it outright to the property owner.”

Merriam adds that one former client of his discovered only after he purchased property that an easement ran directly through a sunken garden. “He made a deal with the owner of the easement to relocate it to a distant part of the property,” he says. “The easement owner didn’t care as long as he had access.”

Oceanfront easements involving public trust doctrine can be a trickier legal battle, and may be more difficult to abolish or transfer, as the Malibu owners have discovered. But, if forced upon them, owners can have some say in the specific conditions of the easement, including its hours of operation and the prohibition of future development. “Be careful that you are not granting more than you need to with any easement,” Merriam cautions. “You don’t want to agree to anything that can potentially damage your property.”

Illustration by Edward Fotheringham.