Riparian rights impact you, especially when considering the use of your waterfront property. If you are buying waterfront property and you do not have riparian rights the property value could be impacted.
What are riparian and non-riparian rights? This is a pretty simple question to answer but many homeowners do not understand the importance nor do many real estate agents even know what this means. Bottom line... riparian rights can be important and valuable to one homeowner and not the next. It all depends on what your desired uses of the property would be. Riparian rights are the legal ownership rights of the land beneath the water, its use, or even access, including the use of the water itself. Riparian rights are the allocation of water among those who possess land along its riparian rights are generally reserved for land abutting a natural watercourse. So this means an ocean, bay delta, lake or sea would not classify as riparian rights but as littoral rights. In Virginia, you have the right to the land beneath the water. However, in the State of Maryland, this is very different and is simply access to the water. For many jurisdictions other than Maryland as a riparian owner you maintain ownership to the land beneath the water while the state maintains ownership of the navigable water. In Maryland, the state controls ownership of the land beneath the water. When it is said that a property does not have riparian rights (non-riparian) this typically means that they do not have exclusive access to the water's edge and/or in some localities use of the land beneath the water. This is very common in neighborhoods that do not have a lot of waterfront access. For example, we can sometimes see community access cut in front of another landowner's property even though it would appear that the landowner has the exclusive access since the house or land abuts the water's edge. We can also see community piers in front of a landowner's property. This landowner would be said to have non-riparian rights. In certain situations, there is a portion of land in front of a subject property that is connected to the riparian rights this land may not be able to be accessed without trespassing across a landowner's private property. However, in the State of Maryland since the state owns the waters an individual may be allowed to access and use the land beneath the water by way of water. Yet again very unlikely but a possible scenario.
"It is well established that the title to land under navigable water is in the State of Maryland, subject to the paramount right of the United States to protect navigation in the navigable waters.
The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.
When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a ‘franchise-a vested right, peculiar in its nature but a quasi property of which the lot owner can not be lawfully deprived without his consent."
CAUSEY V. GRAY, State of Maryland
The use of the land is typically outlined in some fashion by the riparian owner. A common misconception... If a landowner has non-riparian rights this does not mean they are unable to construct a pier, use the waters, or have general use of the land. In Maryland, you can apply for permits even if you do not have the riparian rights and be granted the approval to construct a pier or use the water. Even if you have riparian rights in Maryland this does not automatically determine you can build a pier. In Virginia if you have riparian rights you have the right to use the water and construct pier within your riparian area but still must file the proper permitting in order to make sure you are following the procedures and rules. We are not going to get into the specific use/consumption of the water since the typical homeowner is not concerned about consumption, but this can be restricted as well. Previously if you lived along the Potomac River in Virginia you needed to seek approval of the State of Maryland to use the water and construct a pier since much of the Potomac is claimed to be owned by Maryland. Now you must seek from where the pier originates. Another topic for another day.
These riparian rights are recognized as a property right, the type of property right that cannot be taken without just compensation, and the right is exercised within the “riparian area” which begins at the mean low water mark at the property and extends into the water body to the “line of navigability”.
Taylor v. Commonwealth of Virginia, State of Virginia
States in the western United States tend to follow the prior appropriation of water rights and the states on the east coast tend to follow riparian. What does this mean for western states? Well, simply the rights to the water can be sold and traded and do not run with the land connected to it or beneath it. This allows individuals that need to use the water to be granted reasonable use. Again this varies from one locality to the next. It is at this time that I suggest seeking the advice of a real estate attorney in your state to be able to answer your specific questions. This is not meant to provide legal advice in any way and we are not responsible for decisions made based on this information. The opinions and expressions in this article are solely that of the author.
Patrick DeLeonibus and The Waterfront Group specialize in waterfront real estate across the entire Washington DC region including Maryland and Virginia.