Riparian Lines on a Subdivision Plat
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Ownership of waterfront property is very desirable in Florida and often involves unique real property considerations. As a result, a subset of real property law has emerged to address what is called “riparian rights.” Riparian rights include the rights of ingress, egress, boating, bathing, fishing and even the right to an unobstructed view over the water. Over the past century and more, a robust body of law has developed, which provides solid answers to many of the questions confronting riparian owners. However, there is one question that has not been solidly answered. Can a developer set the riparian boundaries over the waterbody by way of a subdivision plat?
Historically, the majority of subdivision plats have not drawn “riparian lines” on the waterbody if it consists of sovereign submerged land owned by the State for the public trust. Rather, the boundary lines on the plat stop at the upland border to the sovereign waterbody. There is an emerging trend though of developers drawing dashed lines on the waterbody, accompanied by a generic note similar to the following: “Dashed lines extending into the waters represent riparian rights.” Without solid law governing the legitimacy of these dashed lines, homeowners are left to wonder how to treat them. Do they represent the legal extent of the homeowner’s riparian rights?
The answer to this question is unclear. On one hand, long-established common law dictates that riparian rights are equitably distributed by the Court on a case-by-case basis. On the other hand, the law allows landowners to contractually limit and define riparian rights through bilateral agreements. And the purpose and effectiveness of plats are largely unassailable.
Common Law Apportionment of Riparian Rights
Riparian rights are established in accordance with Florida common law. Ferry Pass Inspectors’ & Shippers’ Ass’n v. White’s River Inspectors’ & Shippers’ Ass’n, 48 So. 643, 644 (Fla. 1909); Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957); Belvedere Development Corp. v. Dept. of Transp., Div. of Admin., 476 So. 2d 649, 653 (Fla. 1985). As explained by the Court in Hayes, riparian rights are equitably distributed by the Court on a case-by-case basis:
We are therefore of the view and must hold that the common law riparian rights to an unobstructed view and access to the Channel over the foreshore across the waters toward the Channel must be recognized over an area as near ‘as practicable’ in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel. This rule means that each case necessarily must turn on the factual circumstances there presented and no geometric theorem can be formulated to govern all cases. An upland owner must in all cases be permitted a direct, unobstructed view of the Channel and as well a direct, unobstructed means of ingress and egress over the foreshore and tidal waters to the Channel. If the exercise of these rights is prevented, the upland owner is entitled to relief.
We therefore prescribe the rule that in any given case the riparian rights of an upland owner must be preserved over an area ‘as near as practicable’ in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel. In making such ‘equitable distribution’ the Court necessarily must give due consideration to the lay of the upland shore line, the direction of the Channel and the co-relative rights of adjoining upland owners.
Id. at 801-802. As explained by the Court in Hayes, the riparian right to an unobstructed view must be preserved over an area “as near as practicable in the direction of the Channel so as to distribute equitably the submerged lands,” and a resort to plat drawings is not mentioned.
Other Law and Guidelines for Identifying Riparian Lines Make No Mention of Plats Determining the Line
The Florida Supreme Court in Hayes does not mention that a plat determines riparian boundaries. The Guidelines, published by the Florida Department of Environmental Protection Bureau of Survey and Mapping, do not mention resorting to a plat for determination of riparian boundaries. The Florida Statute defining riparian rights does not mention that a plat determines their boundaries. See § 253.141, Fla. Stat. The Florida Statutes governing plat drawings do not mention that a plat determines riparian boundaries—let alone mention riparian rights at all. See §§ 177.011-151, et seq., Fla. Stat. The Florida Statutes governing deeds do not mention resorting to an incorporated plat for determination of riparian boundaries—let alone mention riparian rights at all. See §§ 689.01-301, et seq., Fla. Stat. We have spoken with many riparian experts, and they have not been able to point to any authority that says a subdivision plat can set and determine riparian boundaries.
Bilateral Agreements Can Define Riparian Boundaries
In Florida, parties can contractually limit and define riparian rights. See Goldman v. Lustig, 237 So. 3d 381, 384-385 (Fla. 4th DCA 2018); see also Belvedere Dev. Corp. v. Dep’t of Transp., Div. of Admin., 476 So. 2d 649, 650 (Fla. 1985). In Belvedere the Florida Supreme Court held that:
(1) Riparian rights are property rights, incorporeal interests in real estate; (2) They may be separated from the upland by bilateral agreement to reserve them in a deed of conveyance or all or any interest in riparian rights may be transferred by voluntary act of the upland owner….
Id. at 653. However, the Belvedere Court did not say that a Plat is a bilateral agreement which can set riparian boundaries. And a Plat does not seem to be a bilateral agreement.
Plats Determine Land Boundaries in Subdivisions
Florida’s Fifth District Court of Appeal has explained that “[a] plat is a representation of the subdivision, as exact and complete as possible. It is intended to disclose details, exact location of boundaries and it must be prepared by a civil engineer or competent surveyor. ” Estate of Johnston v. TPE Hotels, Inc., 719 So. 2d 22, 28 (Fla. 5th DCA 1998). This is because “[t]he purpose of the statutes and the public policy of this state is to protect subsequent purchasers of property in the subdivision so that by studying the plat or map they can determine what rights and burdens are imposed on the property by the dedicators.” Id; see Fla. Stat. § 177.021 (“The recording of any plats made in compliance with the provisions of this part shall serve to establish the identity of all lands shown on and being a part of such plats, and lands may thenceforth be conveyed by reference to such plat.”). However, plats are said to establish the identify of “lands” owned and subdivided by the developer, and makes no mention of subdividing the submerged lands owned by the State of Florida in trust for the public.
If Florida’s public policy is for developers to be able to determine riparian boundaries when establishing platted subdivisions, then the Legislature or Courts should address that gap in Florida’s body of riparian law. Until then, homeowners are left with uncertainty as to their riparian rights appurtenant to a Lot in a platted subdivision with “dashed riparian lines.”