Riparian Rights in Real Estate: Maintain Control of Your Waterfront Property

Waterfront property value can be greatly enhanced if it includes riparian rights - allowing the owner to control the shoreline, bottomland and access to the associated body of water. Learn how to protect your investment.

Published by Jim Lang

Riparian Rights in Real Estate: Maintain Control of Your Waterfront Property

Are you considering the purchase, or currently own waterfront property in Virginia? Maybe you're a real estate professional helping a client consider different options.

Consulting an experienced Virginia waterfront attorney can help. Here's why:

Waterfront property value can be greatly enhanced if it includes riparian rights - allowing the owner to control the shoreline, bottomland and access to the associated body of water.

However, you may be surprised to learn that your rights as a property owner are not set in stone.

Every body of water and shoreline in Virginia is unique. This includes the history of ownership as well as the boundaries between private and public control.

To establish or confirm riparian rights in real estate, you must take specific steps to clearly define your zone of control.

Understanding Riparian Rights in Virginia Real Estate

Riparian rights is a term used to describe the unique privileges that belong to the owner of property along a shoreline. It's important to remember that just because you own property that touches water, you may or may not have complete control over what happens at the water's edge, and beyond.

A riparian area describes the zone of bottomland and associated water that has been divided to provide rights and privileges to an associated property owner. Multiple property owners may have varying degrees of control over different riparian zones within the same body of water.

Establishing a riparian zone, with associated riparian rights may require a number of important elements, including a riparian survey and a records search.

Sophisticated waterfront property owners in Virginia care about this stuff because they want to enjoy all of their potential riparian rights:

Water Access

Do you have the ability to proceed into the water, or launch a boat from your shoreline without having to ask permission?

Water Use

Can you utilize the water along your property for domestic, agricultural and recreational purposes? Of course, you'll need to ensure that your activities do not cause undue harm to other users (humans, protected plants or local wildlife).

Construction Rights

Are you allowed to build a dock or pier along the shoreline of your property? How far into the water can it go?

Shoreline Protection

If you value your land, you'll want to protect your shoreline from erosion. After attaining necessary permits (one example of the several needed permits can be a wetlands permit), do you have the right to install bulkheads, riprap, or a seawall?

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In summary, riparian rights in real estate can be incredibly valuable. Virginia has 3,285 square miles of water, and 10,577 miles of shoreline. Waterfront property value studies from across the country indicate waterfront property owners may enjoy a premium of $30k - $102k over comparable inland property.

How much money are you leaving on the table if you fail to confirm or establish these rights?

Realtors enjoy higher commissions, sellers receive more money, and buyers get more value when this is handled correctly.

Wealthy Landowners Care about Riparian Rights

Whether you're considering a hunting estate along the James River, a luxury oceanfront home in Virginia Beach, or a family farm that borders a navigable creek - I hope it's becoming clear that riparian rights are the key to controlling how your property interacts with the water.

Without them, you could struggle with…

This type of investment represents the pinnacle of luxury and exclusivity - right up until a neighbor decides to permanently dock his fleet of homemade houseboats to a floating barge in front of your home.

Real-World Examples of Riparian Rights Disputes

Case law in Virginia - whether it originates from the Supreme Court of Virginia or Circuit Courts - brilliantly illustrates how riparian rights can affect homeowners.

Enforceable Boundaries for Dock Placement

Langley v. Meredith, 237 Va. 117, 375 S.E.2d 783 (Va. 1989)

When two condo owners constructed private piers - protruding far from their property along Broad Bay in Virginia Beach - their neighbor was horrified, believing the area of water they believed to be under their legal control had been violated.

It's very common for waterfront property owners in Virginia to wake up one day and find evidence of construction being planned or commencing into areas they feel are part of their riparian area of control. This case was no different.

In fact, the perceived violation was so substantial that the piers limited the plaintiff's navigable access. So, they did the smart thing and contacted an experienced waterfront property lawyer.

This case went all the way to the Supreme Court of Virginia. The final decision…

Riparian owners are entitled to unobstructed access within their riparian area. Therefore, the beautiful dock had to be scaled back so that it did not violate the waterway / bottomland outside of the area legally controlled by the pier owners. This was a substantial, unexpected expense for the property owners who commissioned the original construction without ensuring they remained within their zone of control.

Further Reading: What is a Riparian Area?

Marina Permit Appeal

Zappulla v. Crown, 391 S.E.2d 65 (Va. 1990)

Riparian rights are not an exact science. There are many factors at play - which is why help from an expert at the earliest stage possible is so important. Here's an example…

A marina owner on Broad Creek (tributary of the Rappahannock) wished to expand their marina. They felt the proposed expansion was within their riparian zone, so they made plans and applied for a permit from the Virginia Marine Resource Commission (VMRC) in October of 1986.

The VMRC conducted a study and approved the permit. Construction commenced and the deadline for appeal via the agency expired.

At a later date a neighbor became upset and challenged the validity of the VMRC's study, which formed the basis for the original permit approval. They took the case all the way to the Supreme Court - challenging the ability for the VMRC to apportion the underwater flats associated with the area of construction.

To summarize, the neighbor felt that their riparian rights had been violated. The VMRC felt that the time period to challenge the permit had administratively expired. The owner of the marina wanted to avoid the cost and inconvenience of deconstructing the marina expansion.

This became significantly more complicated as a result of the complaining neighbor's failure to challenge the permitting process in a timely manner. This could be because they were unaware of the permit application, or associated time limits.

In the end, the Virginia Supreme Court reinforced that the VMRC lacks the administrative authority to partition bottomland. This is an area solely in the purview of the Virginia judicial system.

Much of this could have been avoided if the complaining neighbor consulted a Virginia maritime legal expert earlier in the process. In the end, the matter had to be fully resolved through a separate case that took into consideration the Virginia Supreme Court's ruling.

Water Withdrawal Dispute

Hite v. Town of Luray, 175 Va. 218, 8 S.E.2d 369 (Va. 1940)

In the Shenandoah Valley, a municipality started withdrawing water for the needs of the community. Over time this led to neighbors downstream having substantially less water for livestock watering.

This situation evolved into a legal dispute between different parties with property touching the same stream.

Virginia follows the reasonable use doctrine. This means that even though property owners with riparian rights may make reasonable use of the water, they must not unreasonably interfere with the rights of other riparian zone owners.

In the end, the amount of water that could reasonably be extracted by the municipality was defined, in an effort to ensure every property owner downstream still could access a minimal, necessary amount of the shared resource.

Hite is a landmark case often cited when similar or related issues arise in the courts today.

Preservation of Scenic Views

Our Virginia waterfront law firm often receives calls from waterfront real estate owners who are upset about the impact of a neighbor's construction project on their scenic view.

Virginia's courts tend to decide against those who bring claims solely related to a party's belief that their ability to enjoy their scenic waterfront view has been or will be harmed.

We cover this in greater detail here: Waterfront View Ownership Rights.

If you're upset about a project's impact on your scenic view, you should still contact a Virginia waterfront lawyer to discuss your case, because there are likely areas of the law or claims you could make that haven't yet occurred to you. We'll be able to help you figure that out without chasing claims with a low probability of prevailing in court or through agency appeal.

How do Riparian Rights impact Real Estate transactions?

Riparian rights can have unexpected consequences on real estate transactions in the Commonwealth of Virginia. Smart developers, buyers, sellers and their realtors should carefully review the following examples:

Purchase of Virginia Luxury Estate

Property valuation is sometimes more art than science. What we do know (see Understanding Riparian Rights in Real Estate) is that properties with waterfront access and an associated riparian zone of control command prices up to 45% higher than a comparable property inland.

Consider, for example, the situation where a buyer purchases a multi-million-dollar waterfront estate, believing that he could build a private pier. After the transaction closes he discovers that he cannot build a pier because, for example, the bottomland is privately owned by another who refuses to give consent or, for another example, the bottomland is owned by the Commonwealth of Virginia but a previous owner separately conveyed the riparian property rights to another person or, for yet another example, the new owner discovers that a narrow strip of land separates his property from the mean low water mark.

These conditions, which would have been discovered if the buyer had consulted an experienced waterfront property law attorney, would bring on a serious case of buyer's remorse because the new owner cannot fully enjoy the waterfront amenities that he thought were included in the bargain.

These scenarios can lead to an avoidable hangover for the real estate agent who represented the buyer.

Establishment of a Subdivision

Developers can make huge profits by purchasing large swaths of property in Virginia, and then developing the land and subdividing the property into multiple parcels with single family homes on them.

Unfortunately, developers sometimes forget to also subdivide the riparian zone so that each resulting property owner has a clearly defined area of control over the water along their property. If the land is subdivided, but the original riparian zone is still intact, disputes between neighbors who want, or don't want the water that touches their property to be touched usually ensue.

Real Estate Title Defects

Does a property's deed mention "waterfront property"? If so, you'll want to take a closer look to see if that term is described in sufficient detail.

Most states use the "ordinary high watermark" to define the boundary between the property controlled by a private party and the government. However, the Commonwealth of Virginia uses the "mean low water" - the average water level at low tide. This is why a lot of the information you find on the internet may be contradictory at best, or completely irrelevant to property in the Commonwealth at worst.

Additionally, property owners with ill-defined language in their deeds may discover they lack direct riparian rights, or they have been separated by a public easement or reserve strip.

Wealthy property buyers in Virginia, and their realtors, should perform due diligence with the help of an experienced waterfront law attorney in Virginia. Otherwise that dream home could become an expensive disappointment.

Protect and Enforce your Riparian Rights in Real Estate

Riparian rights can have a dramatic impact on your land's value. Here are five steps wealthy Virginia property owners should leverage to protect their waterfront assets:

  1. Obtain a Riparian Survey
  2. Research Environmental Constraints
  3. Quickly Take Defensive Action
  4. Research Deed History for Easements and Deed Restrictions
  5. Work with an Experienced Waterfront Attorney in Virginia

The riparian survey will give you a better interpretation of your zone of control. Environmental constraints like the Clean Water Act and the Chesapeake Bay Preservation Act may also exist.

In conclusion, if you notice a neighbor doing something you don't like, do not delay in taking action. Contact a waterfront attorney with experience in Virginia. This individual can also help perform the research necessary to identify potential constraints - especially before you close on a new waterfront property.

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