Water Rights: Buying or Selling a Waterfront Home

If you haven’t noticed, Michigan has a whole lot of water, an estimated 6 quadrillion gallons of fresh water to give you a closer estimate. The lovely mitten state has approximately 3,288 miles of Great Lakes coastline, 10,000+ lakes, ponds, and a 35,000-mile web of wetlands, streams and rivers. The question is, who regulates and protects all of these waters in our great state? That’s where riparian laws come into play.

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If you don’t know what riparian rights are, let me define them for you the best way I know how, by using the State of Michigan’s definition. Riparian rights are “those rights which are associated with the ownership of the bank or shore of an inland lake or stream.” They are the rights you get when you purchase a waterfront property that meets a shoreline. They are passed on with the ownership of the waterfront property, but they can be granted, licensed, or prescribed to other owners, even previous ones. Let me set the record straight before I go forward. Littoral rights are properties connected to an ocean, bay, delta, sea or lake. 

Whereas, riparian rights are connected to flowing bodies of water such as rivers and streams. Connected isn’t the legal term for it, but it allows my explanations to be a lot less wordy. In Michigan, and in the other states I’m sure, we refer to both riparian and littoral rights as riparian rights as an interchangeable term. 

These rights were created to provide riparian property owners and members of the general public an outline of essential information pertaining to those riparian legal rights and limitations associated with owning a stream bank or inland lake shoreline constituted private property in Michigan.

As mentioned by the State of Michigan, Riparian rights are subject to frequent revision by court rulings and various ordinances that may be enacted by local governments. Please consult with a qualified riparian rights attorney for expert counsel regarding specific issues or cases.

That extremely wordy excerpt probably made you a little confused, so let me simplify it by stating what your basic rights are as a riparian property owner. You can access the water of a lake or stream in which you own the riparian property (which is the bank or shoreline you own). You can install a dock anchored to the bottom of the land if you so choose. 

You may also do the same with a boat. You are granted reasonable use of the water for strictly domestic purposes (watering your flowers, sprinkler system, etc.), and you have the right of accretions, or what is also known as mother nature’s little gift, which means ownership of the accumulation of sand, silt, or organic matter on your shoreline or bank. Also understand that if your property is close to water but does not touch it, there are riparian rights associated with it. 

So to put your basic rights into even simpler terms, you don’t own the body water, but you can put a dock and boat on it while having the luxury of owning any additional land that’s created as water deposits soil on the shoreline. You of course have the right to fish unless that right is sold or leased. You can protect your property from being eroded by the water, but it’s typically subject to approval. 

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So many homeowners neglect to understand that riparian rights can bring on some issues, so it’s good to have basic knowledge about it, especially if you come across the most common issues of: right of direct access to lakes and streams, boundary changes, docking and mooring, raft anchors and shore stations, keyholes and funneling, trespassing, noises, walking along and using the lake shore. 

one of the most common issues aside from recreational use about riparian rights is the ever changing boundaries of surface water. If a lake or pond were to recede from the normal shoreline, this newly revealed land extends the riparian owner’s right to include that land up to the new shoreline. That might sound all fine and dandy, but the water could always come back to normal levels or even rise higher. So don’t think you can just build an unpermitted shed where the water was, because that would affect the water’s natural flow when the water level is restored and that would be against riparian law in most states. On top of that, most states own the navigable water, and it’s their responsibility to make sure nothing interferes with the navigability. That goes for docks too. 

Especially if it affects the water usage of another neighboring riparian owner. There are instances where some states allow for reasonable use (which is included in the riparian rights doctrine), prior appropriation and subscribe to the natural flow theory. Prior appropriation, defined by the Legal information Institute is “water rights that are determined by priority of beneficial use. This means that the first person to use water or divert water for a beneficial use or purpose can acquire individual rights to the water.”

 US Legal defines Reasonable use, by giving “each owner the right to make use of any water, provided that the use is reasonable in relation to the use of other riparian landowners.” Natural flow theory is letting a higher elevated property drain water into lower elevated property. This just so happens to be a theory that Michigan is subscribed to. Take a look at this map to see what your state’s water laws are. 

Some of you Michiganders might be thinking about Wixom lake and Sanford lake that was completely drained in May 2020, due to the failure of the Edenville dam during heavy rains which also affected the Sanford dam downriver which forced over 10,000 people to evacuate and destroyed home values as you can imagine. There is talk that these lakes will be restored by 2025, assuming there won’t be hardships, but what does that mean for the owners’ riparian rights? 

Wixom Lake

There isn’t water, so wouldn’t they all own a nice slice of acreage on those lakes? Not that people are arguing about it (at least i hope not), because at the end of the day everyone wants their lake back, but for the sake of education, I’ll touch on it, but before I do so, full disclaimer, I am not a lawyer, account or financial advisor by any means and the information in this video is for informational purposes only. This video is based on my own research and experience and I always do my best to stay up to date, and avoid the possibility of errors. Be sure to always consult a legal professional before making any investment or legal decision.  

The biggest determining factor in this situation that I didn’t mention is, these lakes are artificial or man made. Riparian rights refer to a natural water course. An artificial water course (canal, drainage, irrigation ditches, reservoir, etc.) are hit or miss with riparian rights after the two court 

cases of Persell v. Wertz, 287 Mich App 576 (2010) and Holton v. Ward, 303 Mich App 718 (2014). Persell vs. Wertz referred to a landowner who dug a pond that ended up crossing the property line and with Holton vs. Ward was a dam created for a wetland that eventually formulated into a pond. What is the argument exactly?

The neighboring owners didn’t get to enjoy their riparian rights as their property lines shored the newly created bodies of water. Of course these cases were for little bodies of water, but it created a larger issue for larger bodies of water. 

Think about it for a moment, the Wixom lake that is enjoyed by fisherman, boaters, and sunset pontooners alike was created in the 1920’s as a reservoir and could be argued as an artificial water course (which it is but it has sense become an established lake to many), and revoke riparian rights from the owners who weren’t there prior to the 1920’s original body of water. Meaning those few people could install docks and boats while the homeowners who were post 1920’s could not. 

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That would blow my mind if someone went through great lengths to make it happen, but It would be a legally correct argument if these cases’ rationale was brought into court. I couldn’t tell you how far they’d get with it though. But in most situations, artificial bodies of water have riparian rights of some kind, I just tell you this fictional scenario because it’s good to make sure you cover your tracks by understanding your rights as a riparian property owner. 

Michigan land and Streams Association still states the riparian rights of the property owners living on artificial lakes throughout the state are still “uncertain”. But understand that If a landowner or property owner doesn’t  have non-riparian rights this does not mean they are unable to construct a dock, use the waters, or have general use of the land. You can always apply for a permit and be granted approval, and that even goes for waterfront property owners who do have riparian rights, that doesn’t automatically mean they can build a dock, a permit is still needed for approval. 

So what would be the go-to remedy for violating riparian rights? Most times, people are told to stop doing whatever it is that’s violating riparian law. If for some reason it continues, compensation based on damages will be rewarded. As long as you aren’t getting in the way of your neighbors water use, it’s safe to say you should be fine. If you are having issues with a neighbor or community member, be sure to reach out to a riparian rights attorney and get that issue resolved if civil agreements have not worked. 

So what should you know about buying or selling a waterfront property?

For starters, your access. As I mentioned before, if you buy a property or land next to water but not touching, you do not have riparian rights. That’s why doing a title search for easements before closing is crucial to understand what you do and don’t have access to.

Number two, flood insurance. You’ll most definitely want a copy of the property’s elevation certificate so you can call an insurance company and become aware of how much it’s going to cost to purchase flood insurance, especially if the property has lower elevation and a history of flooding.

Number three, putting in a dock. Of course, if you don’t already have one. Depending on where the home is located, it could be quite a process to acquire a permit, as it typically involves local, county, state and federal agencies to review the application.

Number four, the water frontage zone. If your home is within 1,000 feet of tidal waters, you may face additional requirements, especially when building a new home on waterfront property. It could cost you a lot of money, so be sure to ask questions ahead of time to avoid any issues down the road. 

Number five, as I mentioned throughout this video, riparian rights. It’s important to ask the question , do I have riparian rights? In most cases you will, especially if you’re seeing boats and docks all over the lake. As I mentioned, if you are unsure, or need clarification about the law, be sure to consult with a riparian rights attorney. 

Number six, your watering rights. As I mentioned before, most states follow the reasonable use doctrine, but in situations where water tends to be more scarce, they may not want you to be watering your flowers, or connecting your sprinklers to the body of water. It’s state-specific, so be sure to ask about your water rights!

Last but not least, number seven, the Water depth. As a buyer of waterfront property, you’ll want to understand the depth of the water, not only for dock placement, but access to other bodies of water like canals. Waterfront property owners who have a sailboat need to have a higher dock, so being able to see the history of dredging, which is the excavation of materials under the water will help you understand how often it fills up. 

As I mentioned before, it’s important to have a basic understanding of your water rights when purchasing a waterfront property, so you know what to avoid when you occupy the home. There is most definitely endless information about riparian rights, from the resource centers to the court cases, it’s important to have your rights protected, so be sure you consult with a riparian rights attorney if you face any issues. 

I want to hear your riparian horror stories! Drop your experiences with riparian rights in the comments, it may help someone who is facing a similar issue.

Cheers,

Andrew McManamon

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