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Riparian Rights in Florida: The Right to a Waterfront View
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Riparian Rights in Florida: The Right to a Waterfront View

September 28, 2015 Community Association Industry Legal Blog, Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 8 minutes

In Florida, one of the most attractive and desirable features of waterfront property is the incredible view. Concerning waterfront property ownership, it can be difficult to distinguish where your private land rights cease, where your neighbor’s private land rights begin, and the rights of the State with sovereign submerged land ownership.  A common dispute among waterfront property owners occurs where a neighbor begins construction or activity that actually blocks another owner’s waterfront view.  This blog post will discuss the real property owner’s right to an unobstructed view of the water.

A subset of real property law has emerged to address what is called “riparian rights.” Riparian rights include the rights of ingress, egress, docking, boating, bathing, fishing and even the right to an unobstructed view of the water.  Examples of situations that riparian rights address include: (1) the general use of water adjacent to property, (2) wharfing out to navigability in the channel, (3) actual access to navigable waters; and, (4) the right to accretions. Shore Village Property Owners’ Ass’n, Inc. v. State Dept. of Environmental Protection, 824 So.2d 208 (Fla. 4th DCA 2002).  Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1111 (Fla. 2008)aff’dStop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010).  Such rights inure to the owner of the upland; however, the actual land covered by the water is not owned by the upland owner.

Generally speaking, an upland owner has the right to an unobstructed view of the channel.  Hayes v. Bowman, 91 So.2d 795, 801 (Fla. 1957).  In determining this right, a court will consider the lay of the upland shore line, the direction of the channel, and the co-relative rights of adjoining upland owners.  Id. at 802.  To be a legitimate claim of obstructing a waterfront view, the obstruction must substantially and materially block or obstruct the land owners’ view of the channel.  Lee County v. Kiesel, 705 So. 2d 1013, 1015-16 (Fla. 2d DCA 1998).  In Kiesel, the plaintiffs used expert testimony to indicate a percentage by which the bridge obstructed the plaintiffs’ upland channel view, as well as comparisons of the before and after market value of the property.  See 705 So. 2d 1013.  This case is discussed in more detail below.

The owners’ obstructed view must be of the adjoining waters to their lot.  Mickel v. Norton, 69 So.3d 1081, 1082 (Fla. 2d DCA 2011).  In Mickel, the Sunrise Waterway was manmade to provide access to the connecting bay and river but was found to not qualify as an adjoining water view to the bay and river.  See 69 So.3d 1081.  In Mickel, the useful purpose of the obstruction was to protect privacy and keep out trespassers.  Mickel at 1083.

In Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998), the question presented was whether a bridge built by the county obstructed the owners’ riparian right of view.  The county built a bridge over the Caloosahatchee River that obstructed the Kiesels’ riverfront view.  The bridge extended over the river at an angle, reaching across and blocking the view from the Kiesels’ property.  Experts testified the property had a prior value of $650,000-$659,000; however, that after construction of the bridge, the property was valued at $300,000—with one expert directly attributing the loss in value to the bridge.  Additional expert testimony indicated that eighty percent of the Kiesels’ view of the channel was obstructed by the bridge, thus making the bridge a substantial and material obstruction.  Id. at 1016.  The Court agreed with the expert testimony, even though the bridge did not rest on the owners’ property and rejected the county’s argument that there was no physical taking.

In evaluating the facts, the Court stated as follows:

Shorelines do not often neatly parallel channels, and property lines are not always perpendicular to shorelines or channels. Consequently, it is impossible to devise a rule for every case that would define the physical parameters of the riparian right of view or establish what degree of intrusion would constitute an obstruction.  Id. at 1015.

In Hayes v. Bowman, 91 So.2d 795 (Fla. 1957), the issue was whether a proposed fill in the channel would, when constructed, encroach upon the common law riparian rights of the plaintiffs.  The proposed fill would deprive plaintiffs of a view of the Stetson Law School; however, the court held that the view of the school was not a special riparian right.  The court used the ‘equitable distribution’ rule to determine that the plaintiffs may still “enjoy their riparian rights over the waters in an area as ‘near as practicable’ in the direction of the channel with a resulting equitable distribution of the submerged lands and the waters and area above said lands between their upland and the edge of the channel.”  Id.   The court did note that if the fill were extended in southern direction (interrupting plaintiffs’ remaining view of or approach to the channel), then there would be substantial grounds for complaint by the owners.  Id.

In Brannon v. Boldt, 958 So.2d 367 (Fla. 2d DCA 2007), the issue involved the extent of rights obtained by residents in a neighborhood, as dominant estate holders under an implied easement created by a denotation on a plat map of an “easement for ingress and egress” to a body of water, when the servient estate is part of a residential lot on which there exists an occupied family dwelling.  The court examined the original plat map to analyze the original intent of the developer.  This analysis indicated that the purchasers of the lots were given an easement by implication.  The purchasers of the lots “knew that although they would not own waterfront property, they were purchasing the right to reach the water in a convenient manner.”  Id. at 370.  Therefore, the court found that the easement was created for the benefit of the entire subdivision to provide access to and from the waters.  The easement “necessarily conveys the riparian rights associated with those lands,” including “enjoy[ing] a clear and unobstructed view over the waters.”  Id.

However, in Mildenberger v. U.S., 643 F.3d 938 (Fed. Cir. 2011), the issue was whether waterfront owners had compensable property interests in riparian rights which were allegedly injured by the government when the government discharged polluted water into the river and estuary systems.  The Court found that, “The right to view the water is intended to prevent obstructions and does not encompass a right to view aesthetically pleasing water.”

In Freed v. Miami Beach Pier Corporation, 112 So. 841 (Fla. 1927), the issue was whether numerous concrete piles or pilasters constitute an encroachment upon the submerged lands of the plaintiffs.  The Court held that adjoining riparian owners “[were] not entitled to enjoin authorized erection of pier not materially impeding access, though obstructing view.”  In other words, the erection of a pier by a riparian lot owner upon submerged lands of the state, not at right angle with the shore line of the lots, will not be enjoined by the lawsuit of an adjoining lot owner when the pier does not materially obstruct or impede access to the adjoining riparian lot, though the pier may obstruct the adjoining lot owner’s view.

In addition to the cases discussed above, the following cases discuss, analyze or confirm the proposition that the riparian owner has the right to an unobstructed view over the waters:

Thiesen v. Gulf, F. & A. Ry. Co., 78 So. 491, 491 (Fla. 1917).

Walton County v. Stop Beach Renourishment, Inc., 998 So. 2d 1102, 1104 (Fla. 2008).

Board of Trustees of Internal Imp. Trust Fund v. Medeira Beach Nominee, Inc., 272 So. 2d 209 (Fla. 2d DCA 1973).

Burkart v. City of Fort Lauderdale, 168 So. 2d 65 (Fla. 1964).

Tampa Southern R. Co. v. Nettles, 89 So. 223 (Fla. 1921).

Board of Trustees of the Internal Imp. Trust Fund v. Sand Key Assoc., Ltd., 512 So. 2d 934 (Fla. 1987).

In conclusion, within the subset of property law known as riparian rights, Florida law recognizes that waterfront property ownership often results in disputes and litigation among neighboring landowners and the State concerning the use of the shorelines and waterways.  Riparian rights ensure that the rights of such property owners are weighed fairly and equitably regarding their respective ownership of waterfront property, including the right to an unobstructed view of the water.  Ultimately, the goal of riparian rights is to promote a policy of “reasonable use” of the shared shorelines and waterways among the private property owners.

For more information on Riparian Rights read these articles

Riparian Rights in Florida: The Right to Accretions and Relictions

Riparian Rights in Florida: Docking and Wharfing

Riparian Rights in Florida

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