In deep water: A primer on waterfront rights beyond the low-tide mark

The Legal Point

I live in Poquoson, which has approximately 85 miles of shoreline. As I scan the shoreline from the water, I see homes, piers and boathouses. Thinking like a lawyer, I cannot imagine that all those homeowners make for peaceful neighbors. What happens if a neighbor builds a pier or other structure that encroaches upon your enjoyment of the water? Just how far do your rights go beyond the shoreline? What can you do? This area of the law is known as riparian rights, which covers the rights that an owner of waterfront property has beyond his shoreline toward the line of navigability into the channel.

An owner of waterfront property, in legal parlance, is said to be a “riparian owner.” By law, the rights and privileges of a riparian owner extend from the shoreline to the low water mark, but no farther. (See Virginia Code §28.2-1202.) Ownership of the subaqueous bottomlands beyond the mean low water mark is vested in the Commonwealth of Virginia. Only a landowner who has in his chain of title a grant from the King of England prior to 1873 can claim a right of ownership to the underwater flats beyond the low tide mark. Believe it or not, there are landowners in Virginia who have these rights by a King’s grant.

Regulation of the underwater flats beyond the low-tide mark is vested, by statute, in the Virginia Marine Resource Commission (VMRC). A landowner who wishes to construct a pier or other structure must, in most circumstances, first obtain VMRC approval. However, the VMRC will be of little to no help in a dispute between neighbors. This is because the determination of riparian rights between adjoining landowners is within the jurisdiction of the Virginia Circuit Courts, and not the VMRC.

If you have a testy neighbor, or if you are worried about a neighbor who might build something that interferes with your use of the water, you may want to spend the money to have a riparian survey prepared to establish and confirm your rights beyond the low-tide mark. This is also sometimes referred to as a riparian apportionment. The survey “apportions” the area of water between the adjoining landowners beginning from the mean low-water mark out to the line of navigability.

Once the survey is prepared, a simple document can be filed in Circuit Court and the survey may be recorded. What does that get you? The area that has been apportioned in your favor is now recognized by the court. Your apportioned area remains a public waterway, and people can swim and drive boats through it, but no one may anchor a boat or build a structure in that area without your permission. Your rights to the channel are now confirmed and established. At that point, you have extended your rights beyond the low-tide mark. That area cannot be interfered with once the survey is recorded in the Circuit Court.

A riparian survey is an effective way to increase your footprint beyond the mean low-water line. It can also give you peace of mind knowing that an unsightly pier or duck blind cannot be built in that area. If you own waterfront property, this may be a wise investment and may also increase the value of your property for re-sale.

Joe Verser
About Joe Verser 4 Articles
Joe Verser is a partner in the law firm of Heath, Overbey, Verser & Old, PLC. He regularly represents both commercial and residential contractors in disputes, as well as homeowners and project owners. He can be reached at jverser@hovplc.com or at 757-599-0734.

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