As the COVID-19 pandemic outbreak sent a wave of Michiganders to their second homes for remote work with picturesque waterfront views, many digital nomads discovered the expected tranquility had been displaced with discord over trespassing and access to waterways.
While this may not have been unique, the surge of people occupying vacation homes at the same time was propelling riparian rights into the public eye.
Riparian rights govern property owners’ access to and reasonable use of Michigan water bodies. However, the laws surrounding this particular land use are complex enough to cause confusion for those who are at odds with their neighbors or municipalities over real or perceived infringement.
Michigan laws provide waterfront property owners with a comprehensive legal platform to defend and secure their waterfront real estate while sanctioning allowances for non-waterfront owners to legally access the water.
Riparian property includes or touches a body of water; the converse is true of non-riparian land and, generally, non-riparian owners can’t have a private pier. Yet the law takes into account certain distinctions such as reasonable use of water, owning the land under water, navigability tests, easements, historical use, and zoning that ultimately determines who is authorized and who is restricted from its use.
Non-riparian land owners, for example, can gain access to water by a public road end, as long as the water body is considered navigable. On the other hand, the law recognizes the need to protect the riparian rights of property owners who live next to those areas. These individuals may file a civil action against a violator for interfering with the reasonable use of waters. Activities such as lounging, picnicking, sunbathing, and building boat hoists or docks are often prohibited.
Easements are another way non-riparian owners can access the water, and are the best option for ensuring that the benefit of riparian rights is transferred upon new ownership of the waterfront property.
There are three types of easements: An Express Grant, which uses specific language like a contract; a Reservation, which involves one owner with two properties reserving the right to continue water access from the backlot parcel when the waterfront property is sold; and a Prescription, which is claiming easement over land used in a certain way for a fixed time. In Michigan, the minimum fixed time is 15 continuous years.
Due Diligence: Although waterfront property ownership has its challenges, knowing the basics will help prevent disputes, avoid buyer’s remorse, and achieve the waterfront experience so many people greatly desire.
Whether you’re an owner or someone in the market to buy waterfront property, here are some key riparian elements:
- Be aware that Michigan has two classes of natural waters: Great Lakes and inland waters. Ownership rights of inland waters (rivers, lakes, or ponds) are subject to the same rules of law. The Great Lakes’ surface water itself is not classified as property of the state, but as a public good. Under the Public Trust Doctrine, the State of Michigan acts as a trustee of public rights for fishing, hunting, and boating for commerce or pleasure.
- Purchase a riparian survey. Don’t assume riparian bottomland borders extend straight out from property lines; borders extend from property lines to the center of the water body, so angles will be unusual.
- An owner of an inland lake house in Michigan holds title to the submerged land. Michigan courts have held that the right to use the surface water, once legal non-riparian access is established, does not carry with it the right to anchor a float — or any other thing, for that matter — in the submerged lands of another.
- Review the plat. If you’re buying a lot in a platted subdivision, the plat usually describes the rights to any common areas, including road ends or “community” lots, and may also describe any access easements that aren’t apparent from the deed.
- Make sure there are no unrecorded easements. Anything not recorded in the register of deeds will not come back in a title search. Ensure that nobody else has any rights to use your property for waterfront access.
- Check the location of neighboring docks. Even if you can show a neighbor’s dock is on your riparian bottomlands, the neighbor might still have the right to keep it there through a prescriptive easement.
- Know when a dock permit is required. Generally, docks or boat hoists that are seasonally removed don’t need a permit, as long as the structures are for private, noncommercial, and recreational use, and don’t unreasonably interfere with the use of the water by others or with water flow. Public or commercial structures require a permit.
- Read your title insurance policy carefully. If your property comes with a dock permitted by the Michigan Department of Environment, Great Lakes, and Energy (EGLE), be sure to check the dock configuration against the permit.
One Final Piece of Advice: Visit the property you’re considering purchasing during peak times. A property that looks beautifully serene on a Tuesday morning may have an entirely different vibe on weekends and holidays. That’s important knowledge to have when managing your neighborly expectations.
Daniel P. Dalton is a land use and zoning attorney with Detroit-based Dalton & Tomich. Dalton works with clients on securing their riparian rights, and has co-authored a guide on easements and lake access. For more information, visit daltontomich.com/easements-lake-access-and-riparian-rights/.