By J. Richard Ronay, Esquire
Lochner and Schwenk, LLC
Shoreline development in recent times has meant lucrative business for residential and marina condominium developers. Clearly, the value in such projects is largely tied to the promise of water view and water access. It is crucial that developers understand how riparian rights are to be parsed in such high density developments. Recent appellate decisions in Maryland have reinforced the concept that riparian rights are to be viewed just as any other property right, subject to transfer and use by their owners in accordance with the terms of the grant conveying them. (See Gunby v. Olde Severna Park Improvement Ass’n, Inc., 174 Md. App. 189, 921 A.2d 292 (2007), Olde Severna Park Improvement Ass’n, Inc. v. Gunby, 402 Md 317 (December 3, 2007). Thorough consideration must be undertaken by developers and their lawyers in the planning stages, to be sure that all parties have a clear understanding of the apportionment of the rights being transferred.
For perspective, we should bear in mind that riparian rights are incorporeal property interests that derive from ownership of land adjoining navigable waters and have to do with the property owner’s right to use the interface between land and water in various ways. The term represents a collection of uses including the right of access to the navigable part of the waterway and the right to construct a wharf, pier or other means of securing a boat to the shore, sometimes referred to as the right to wharf out. In a condominium, all unit owners might collectively share in the riparian rights, subject to the terms and conditions set up by the developer in the declaration.
A matter that recently came to our attention illustrates in a small way potential riparian rights issues which may arise in waterfront condominium development.
Our client wanted to install a boat lift in his condo slip but was informed by the board of directors that boat lifts were not permitted. The board no doubt feared establishment of a precedent – if one lift were permitted, others would surely follow and the harmonious appearance of the marina would be compromised. By the time we became involved, the dispute had polarized members of the board and the unit owners.
The Condominium Declaration provided a mechanism for granting each unit owner the exclusive right to use of a particular slip for the “mooring” of a recreational watercraft, “as a riparian right”. Each deed contained an assignment of the grantee’s particular slip.
The board asserted in our case that boat lifts were neither specifically allowed by the Declaration nor defined as a mooring under maritime law. When hard pressed, they were forced to concede that the term mooring was generally defined as a place where a vessel is made secure or the means by which it is made secure, a definition which surely described a boat lift.
The objecting board members were left conceding the ambiguity of the Declaration language which, in turn, left them with little solid foundation upon which to rest their objection. Had the language of the Declaration been more carefully crafted, the conflict could likely have been avoided.
Drafters wishing to avoid confusion should consider an approach that reserves the riparian rights to the condominium association and provides a system of transferable limited licenses for the slips. If riparian rights are to be specifically conveyed with each unit, the declaration and each conveyance, by reference, should set out clear limitations on those rights which the board could then enforce.
As waterfront and shoreline becomes ever more developed, conflicts over riparian rights are sure to become more focused and contentious. We should attempt to anticipate the potential conflicts and limit them before they arise rather than become embroiled in dispute and litigation after the fact.