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Know This One Thing If You Want Waterfront or Water Access
"Trust, but verify." - Pres. Ronald Reagan
With all the lakefront property in Michigan, the court system never seems to run out of disputes about rights related to the use of those waters. In previous entries, I've written about property owners fighting over a fence that divided a manmade lake and a neighbor cutting down his neighbor's trees to get a truck to the waterfront to build a dock. Ultimately, these disputes occur because property owners' expectations about what rights they have to access water, and how, often conflict with what property rights they actually have. The lesson to be learned is that any prospective property owner who has visions of waterfront access must review what the deeds, easements and other title records allow, before making a possibly disappointing and expensive mistake.
Our most recent example comes from a Michigan Court of Appeals decision regarding Horseshoe Lake in Washtenaw County. In Horseshoe Lake Corporation v Carlson, a corporation organized under the Summer Resort Owners Act sued an owner of property within the Corporation's jurisdiction. The property owners, who owned property that was separated from the Lake by a private park, had constructed a dock and ignored requests by the Corporation to remove it. The Corporation sued, arguing that the property owners did not have riparian rights, and won at the circuit court.
Ultimately, these types of cases hinge on whether or not the person who wants to enjoy access to the water has "riparian" rights and, if so, what the grant of such rights actually allows them to do (if it is the form of an easement). In this case, the Court of Appeals determined that the defendant had no riparian rights because (1) their lot did not abut a waterway and (2) the land dedication did not convey an easement that would have granted them access to the water as a riparian owner. The landowners simply could not create a right where one did not exist by operation of law or by operation of a specific grant.
It is vitally important that if you are considering buying property near or on a waterbody that you look into what rights the title work conveys. Do not make assumptions based on what you might think are your rights or what a seller or broker is telling you. A little research and some good legal advice may save you a fortune and major disappointment.
The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney. He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer. In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a former Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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