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Legal Issues
Oct 27, 2015

Slip Sliding Away?

Sponsored Content provided by Geoffrey Losee - Partner, Rountree Losee LLP

As a new Insights contributor, it seems appropriate to provide a brief introduction. I am an attorney at law and “proctor in admiralty.” That second part garners the most questions; the title of “proctor” is a designation bestowed by the Maritime Law Association of the United States for maritime lawyers deemed to have knowledge, training and experience in maritime cases. My law practice, and that of the Rountree Losee LLP firm, is much wider than our maritime practice, so in future columns you can expect to see Insights on a range of topics, from general business law to brewery law, transportation law, zoning issues and various coastal law-related issues. We begin with a coastal law topic – boat slips.
 
Boat slips are a big deal. More people want more access to beautiful coastal waters. It’s small wonder they can dramatically increase the value of land to which they are attached.
 
Boat slip-use arrangements are frequently casual. In contrast, complex legal arrangements for boat slip ownership and rights-of-use are commonplace, especially in large planned communities with marina amenities.
 
In my firm’s experience, we have found that a “boat slip” is two different things:

  • First, you can think of a boat slip as (a) a defined space over the waters atop the underlying submerged land bottom that (b) touches the shoreline of specifically described land physically touching the shoreline, also known as the Mean (Normal) High Water Mark (“MHWM”). The defined space is where a boat can “slip” in and out.
  • Second, a boat slip can be thought of as the physical items associated with the defined space, like piers, docks, bulkheads and the like.
These two aspects should be addressed in any agreement involving boat slip location, ownership, access and usage. If not, rights to a “boat slip” can be readily lost.
 
The concepts behind the two aspects are simple, but when you try to apply them to a specific location and situation, each can become complex.
 
The Space of Water Where the Boat Slip is Located
 
Suppose you want to use a defined space of water, but you don’t own the adjacent shoreline that touches the submerged bottom. If so, you have to have some arrangement with the owner of the “riparian” land, which is the “upland” that touches the shoreline.
 
However, the state – not the adjacent upland owner – owns that defined space of water and the bottom submerged underneath it. How can the adjacent land owner have a right that overrides the state’s ownership of the submerged land bottom or the waters above it?
 
The answer is you don’t, unless you also happen to own or control the upland touching the shoreline of the submerged bottom that is underneath the space of water. A major feature of owning property that “touches” navigable water is riparian rights. Riparian owners generally have a right of direct access for an extension over their waterfronts to navigable water, and the right to construct wharves, piers or landings (called the right to “wharf out”). The owners can exclude others from unreasonably interfering with those rights, subject to the reasonable regulation by the state to protect “public trust” rights.
 
Piers, Ramps and Docks
 
People often use the terms “piers” and “docks” interchangeably with “boat slips.” In most cases, the rights of ownership and control of the “naked” boat slip space and the associated docks and piers would be the same. However, it’s not necessarily so, depending on the precise kind of dock or pier involved and what is set forth in any agreement between riparian owner and the boat slip user.
 
For example, suppose a land owner allows someone else to use a boat slip space at an unimproved shoreline if that person supplies a pier, boat ramp or walkway, or a dock and pier. Suppose that none of this is in writing and later these two people part ways. In that case, who has the rights to what was installed?
 
The outcome may depend on whether the installed items are removable or not. Modern boat ramps and floating docks are made to be readily removable for use at other locations. However, “fixed piers” and pilings cannot be readily removed. In that situation, who owns or controls the ramp and dock?
 
One of the fundamental aspects of riparian rights is that they cannot be conveyed separately from the ownership of the land. So in our example, the land owner will contend that he has the sole rights of access to and from the waters and controls everything associated with that right.
 
In contrast, the person who supplied the floating dock will contend that it is removable personal property. In that case, she should be able to own, control and move that dock just as she can move her boat away from the dock. This kind of dispute can get into an area of real estate law of “fixtures.” At some point, personal property can be so connected to land that it can be treated as “real estate.” Generally, if you own the land, you also own the fixture.
 
The lesson is clear: The rights of use of the navigable waters adjacent to land and the ownership and control of docks, ramps and piers should be clearly defined in important legal documents. If not, boat slip rights might just “slip slide away.”
 
Special thanks to my law partner, Steve Coggins, for his hard work in contribution to this article.
 
Geoff Losee can be reached by visiting www.rountreelosee.com, by email at [email protected] or by calling 910-763-3404. Rountree Losee LLP has provided a full range of legal services to individuals, families and businesses in North Carolina for over 110 years. As well-recognized leaders in each of the areas in which they practice, the attorneys of Rountree Losee provide clients a wealth of knowledge and experience. In their commitment to provide the highest quality legal service, they handle a wide range of legal issues with creativity, sensitivity and foresight. 
 

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