Respected sources continue to forecast a significant sea-level rise that could affect a substantial portion of south Florida real estate. While estimates vary widely, there seems to be a common element that the next 20 years could dislocate millions of people from their present residents. Whether it is fear mongering or real, the important point is that you must plan for the worst and hope for the best. Most landowners are likely to be in the same boat, to use an applicable metaphor. However, there is one class of landowners that stand in a unique position in respect of the rising oceans. Those landowners are those individuals owning waterfront property on navigable waters. Already this sound like legal jargon not to be understood, but merely to impress. Let’s make this article user friendly, and that will be our goal for the remainder of this article.
Waterfront property can sometimes be property that does not even touch the water’s edge. That is the first complexity. A second complexity is that not all waters are navigable and different rules obtain for non-navigable as compared to navigable waters. Third, the largest sub-category of waterfront properties on navigable waters are oceanfront properties. Therefore, to make the article understandable, we are going to talk about oceanfront properties. There are law review articles on all the distinctions, exceptions and sub-sets to waterfront properties on navigable waters but we are going to bypass that issue and make some headway on the question that really matters: how will climate change and sea level rise affect a property owner’s rights who lives on the Ocean or the Gulf? And again to keep it simple, we shall just make references to “oceanfront” and know that it includes “gulf front.”
Why is oceanfront real estate so different? It is different because it has one feature that exists nowhere else. An oceanfront lot has a movable boundary. When you buy property inland and not near water, you always buy a lot with fixed boundaries, especially in Florida where the absence of landslides and the gentle topography make measurements of the sides of a lot relatively easy task. Put the property on the ocean, and we will use the most common example of a quadrilateral lot, that is one with four sides, the side facing the ocean will move based upon an average of the high mean water line. Again, let’s simplify matters for the purpose of an example and then bring in the complexity that makes the issues of climate change and rising sea level so troublesome for oceanfront property. To make a short cut to grasping the problem, this line is basically the line that can be drawn between the wet sand, which is almost always darker in color, and the dry sand, the lighter colored sand. No, it does not move with each wave and is based on averages, typically 19 years in length. However, it does move. Imagine if your borders could change on your average lot in your average subdivision! So, for the sake the example, if your oceanfront lot rose from zero feet above sea level at the ocean to 6 feet above sea-level ratably along your 100 foot long lot, and the sea rose 3 feet in height and the high mean water line rose to that level, your lot would now be 50 feet in length once the averages caught up with the changing sea level. And you would not be compensated by anyone or anything as to the 50 feet you lost if this was by natural occurrences. What if the sea level rise is by 7 feet and your lot is completely covered? Most likely, the answer is you own nothing, except some unusual rights referred to as “littoral rights” or “riparian rights” (more fancy words) which we will explain in a bit.
There are exceptions to this rule, the rule mentioned above being most often referred to as the “common law rule.” While the question has not been addressed by the courts, it seems that general global warming and sea level rise will be considered a “natural occurrence.” While ironic, it would certainly be an interesting class action suit if it is not, and I am not certain who you would sue, but again, for simplicity sake, let’s just say this series of events is classified as a natural occurrence and not an “avulsion.” Unfortunately, we have to get fancy again on terminology because if your sand is significantly changed as the result of sudden and perceptible weather related action, your border does not change. Hurricanes that move sand with observable ferocity are classified as avulsions. Avulsions can add or subtract land. The point is that they do not count for border change and the border remains as located before the event. But it is unlikely that this exception is going to apply to global warming.
The next largest exception relates to the State of Florida tampering with the common law rule. Certain state laws contained in Chapter 161 of the Florida State Statutes and enforced through a series of environmental administrative rulings deals with the situation where the beaches have washed away and are restored by the governmental action. The theory was and is that costly beach re-nourishment projects funded by government should not benefit a private landowner so the line will be fixed with an erosion control line or “ECL” and thereafter, an oceanfront lot will be like any other lot: all boundaries will be fixed. In an era of sea level rise, this sounds like a great benefit to an oceanfront property owner, but when passed and implemented, oceanfront property owners believed that they were going to be losing their right to get to the water. There was much litigation but it is the aim of the author of this article to write it without citations so let’s jump to the conclusion: the laws withstood judicial scrutiny and there are now some oceanfront properties with fixed boundaries.
Having dealt with the more important exceptions, let’s talk a little bit about how all this law was created. For the most part, the worry was that the public would “trespass” on your lot but the public asserted you did not own the ocean. The compromise was the high mean water line. The corollary was that the owner of the lot, often referred to, again in legalese as the “upland owner” still had rights to contact the water and these rights have been called “littoral” or “riparian” rights. I told you we would get back to them.
As only lawyers could do, there is much debate over whether these two descriptive words are exactly the same, but we are focusing on the big picture. We will refer to them as “littoral rights” and the most accepted summary is that the lot owner has the right to access the water, reasonably use the water, to take ownership of the sand if his lot gets bigger (except for that “avulsion” exception), and a right to an unobstructed view. That is the “Cliff Notes” explanation of the littoral rights.
But again, all of this was all crafted when the problem revolved around a stray shell hunter wondering into a wealthy person’s backyard. Those same rules will now be utilized to attempt to craft a solution to rising seas and accounting for trillions in dollars or real estate value. This is no exaggeration.
Any owner of oceanfront land must take steps immediately to start to protect the value of the property they own. You need to start with a survey, showing the flood zone. You would be surprised because topography can vary remarkably along the coastline. It would not necessarily mean you are out of the woods, because public roads and infrastructure could be seriously impacted while your home or a group of homes remain an inland on a coral ridge, but from a legal standpoint you should begin to understand where you stand on claiming your real property rights. You should have an evaluation done by a reputable coastal risk assessment professional. This will give you an idea of your relative strength or weakness as to sensitivity to global sea level rise. You should determine if your home was ever a part of a beach re-nourishment project and if an erosion control line has been established for our property. If so, you may be an exception to the general rule.
You should watch for local, state, and federal initiatives. The granting of 30 year mortgages, the availability of any type of flood insurance and an ever increasing governmental concern for a beach suitable for public recreation will impact beachfront ownership. You need to consider your real estate property taxes and whether global sea-level rise has been appropriately factored into your value. Should you have further interest in this topic, please contact mweiner@zonelaw.com.