Boat slips are a big deal.  More people want more access to beautiful coastal waters. However, there is less and less available space for boat slips.  So, they can now cost big bucks.  It’s small wonder they can dramatically increase the value of land to which they are attached.

Boat slip use arrangements are frequently casual.  In contrast, complex legal arrangements for boat slip ownership and rights of use are commonplace, especially in large planned communities with marina amenities.

Inevitably, high-stakes and complex lawsuits have arisen. [2]  Indeed, I recently tried a case over boat slip ownership.  The case is now on appeal.  The trial put on display widely divergent ideas about boat slip ownership and rights of use among real estate agents, appraisers, surveyors, boaters, developers, regulators, land buyers and sellers.  So, before you invest in a boat slip, it’s a good idea to look into what exactly you are buying.

During the trial, I was struck by different answers to the most fundamental question of all — just what is a “boat slip” anyway?   [Maybe you are thinking something like “Now, Steve, come on…Everyone knows what a boat slip is. How complicated can that be?” If so, read on. Maybe you will be just as surprised as I was!] There was different testimony on where boat slips were located, how many boat slips there were, and to what land they were attached.   That is because different people had different thoughts on even the most fundamental aspects of a boat slip.  As the trial progressed, the meaning of the phrase “boat slip” struck me as being, well, “slippery”.  In the end, I thought of a “boat slip” as being two different things:

First, you can think of a boat slip as (a) a defined space over the waters atop the underlying submerged land bottom that (b) touches the shoreline of specifically described land physically touching the shoreline, i.e. the Mean (Normal) High Water Mark (“MHWM”). The defined space is where a boat can “slip” in and out.

Second, a boat slip can be thought of the physical items associated with the defined space, like piers, pilings, ramps, gangways, docks, bulkheads, and the like.

These two aspects should be addressed in any agreement involving boat slip location, ownership, access and usage. If not, rights to a “boat slip” can be readily lost.

The concepts behind the two aspects are simple- at least on the surface.  But when you try to apply them to a specific location and situation, each of the two aspects can be complex:

The Space of Water Where The Boat Slip Is Located

Suppose you want to use a defined space of water, but you don’t own the adjacent shoreline that touches submerged bottom.  If so, you have to have some arrangement with the owner of the “riparian” [3] land, that is, the land that touches the shoreline adjacent to the defined water space.

However, the State — not the adjacent upland owner — owns that defined space of water and the bottom submerged underneath it.  Indeed, no riparian owner owns any particular part of the flowing water[4].  So, how can the adjacent land owner have a right that overrides the State’s ownership of the submerged land bottom or the waters above it?  Put another way, how can anyone exclude others from that space[5] when it’s the State that owns it?

The answer is you don’t, unless you also happen to own or control the upland touching the shoreline of the submerged bottom that is underneath the space of water.  A major feature of owning property that is “traversed or bounded by navigable water” is “riparian” rights[6].  Riparian owners generally have a right of direct access over an extension over their water fronts to navigable water and the right to construct wharves, piers, or landings (called the right to “wharf out”)[7].  The riparian owner can exclude others from unreasonably interfering with those rights.[8]

An indispensable prerequisite of having riparian rights is ownership of an estate interest in land bounded by the navigable waters. You can’t have one without the other[9].  Put another way, riparian rights are annexed to and embodied in the ownership of riparian lands. Those rights go along with a transfer of the ownership of such lands.[10]

Riparian rights are not absolute. Rather, they are qualified or limited rights.  That is because the navigable waters and the submerged bottom are owned by the State, held in trust in favor of the public’s right to boat, swim and fish in the navigable waters of this State. Consequently, riparian rights are limited to the extent necessary to protect public trust rights[11].   (There are certain things the public can and cannot do with respect to riparian land and its associated waters. There are certain things the riparian owner can and cannot do with respect to limiting the rights of the public that arise from the status of the waters and submerged bottom being held in trust.  That is the topic of another blog. Stay tuned.)  So, using riparian property is subject to reasonable regulation by the State in order to protect public trust rights[12].

Let’s suppose you don’t own the upland riparian property, but the riparian owner has given you permission of some type to use the space of a boat slip.   Is there any way you can know how long you can use it?  How many boats can you put into the slip and when?  Can you transfer, assign or sell it?  Can you prevent the riparian owner from restricting your use?  Can you prevent others from using the slip for boat dockage?  Maybe, but it largely depends on the scope of the permission given by the riparian owner.  (That is also another blog topic.  Like I said, stay tuned).

So, the rights to use the “naked” space of the surface waters down to the submerged bottom can be complicated.  But what about piers, boat ramps, docks, decking and the like that usually come with a “boat slip”?  That leads us to the second important part in what is a “boat slip”.

Piers, Ramps and Docks

People often use the terms “piers” and “docks” interchangeably with “boat slips”.  In most cases, my guess is that rights of ownership and control of the “naked” boat slip space and the associated docks and piers would be the same.  However, it’s not necessarily so, depending on the precise kind of dock or pier involved and what is set forth in any agreement between riparian owner and the boat slip user.

Let’s take this example:  Suppose a riparian owner allows someone else to use a boat slip space at an unimproved shoreline if that person supplies a pier, boat ramp or walkway, a dock and piers.  Let’s suppose that none of this is in writing and later there is a
parting of the ways.  In that case, who has the rights to what was installed?

Perhaps the outcome will depend on the whether the tangible installed items are removable or not.  Modern day boat ramp/ walkways and floating docks are made so that they can be readily removable and can be used at other locations.  In contrast, “fixed piers” and pilings cannot be readily removed.  In that situation, who owns or controls and ramp and dock?  (Some people would ask this same question by asking “who owns the boat slip?”  By now, maybe you wonder like I do think that such phrasing can be misleading).

As explained, one of the fundamental aspects of riparian rights is that they cannot be conveyed separately from the ownership of the land touching the navigable waters.  The riparian owner will thus contend that it has the sole rights of access to and from the waters and controls everything associated with that right.

In contrast, the person who supplied the boat ramp or floating dock will contend that they are removable personal property. Thus, she should be able to own, control and move that property just as she can move her boat away from the boat slip.  She will contend that the riparian owner has no right to the movable ramp and dock any more than he does to her boat.

This kind of dispute can get into an area of real estate law of “fixtures”.  At some point, personal property can be so connected to land that it can be treated as “real estate”.  The personal property that becomes real property is called a “fixture”. Generally, if you own the land, you also own the fixture.

In contrast to real estate “fixtures”, some items can be so easily detached and removed from the land that they do not lose their original character as personal property.

The laws of “fixtures” deals with defining (a) what are or what are not fixtures and (b) who has rights to them. Depending on the facts and context, the rights of ownership and control can possibly differ depending on the character of the installed items as “land” or “personal property”.  Thus, the “realty” versus “personal property” distinction might be important.

I do not know a North Carolina case that specifically gives the outcome in this situation.  There are a few cases in other states that deal with the issue, but the outcomes are fact specific and tied to the overall context of the dispute.

The lesson is clear:  the rights of use of the navigable waters adjacent to land and the ownership and control of docks, ramps, and piers should be clearly defined in important legal documents.  If not, boat slips rights can slip away as easily as an untethered boat.

 


 Inland Harbor Homeowners Ass’n, Inc. v. St. Josephs Marina, LLC, ___ N.C.App. ___, 724 S.E.2d 92 (2012) (Inland Harbor I.), aff’d upon remand from Supreme Court,Inland Harbor Homeowners Ass’n, Inc. v. St. Josephs Marina, LLC, ___ N.C.App. ___, 731 S.E.2d 704 (2012) (Inland Harbor II ), aff’d upon 2d remand from Supreme Court, ___ N.C.App. ___, ___  S.E.2d ___, 2013 WL 791492 (March 5, 2013); Warrender v. Gull Harbor Yacht Club, Inc., ___ N.C.App. ___, ___ S.E.2d ___, 2013 WL 3989949 , COA12-1038 (6 August 2013)

[3] Generally, “riparian” land means inlands that touch the navigable waters of a sound, river, creek or stream.  “Littoral” land means those lands touching the ocean.  For simplicity I will just refer to both as “riparian”.

[4] Walton v. Mills, 86 N.C. 280, 282 (1882); Smith v. Town of Morgantown,  187 N.C. 801, 803, 123 S.E. 88, 89 (1924).  Such waters are “indivisible and not the subject of riparian ownership.”  Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624 (1910); Blue Ridge Interurban Ry. Co. v. Hendersonville, 69 N.C. 471, 88 S.E. 245, 246 (1916).

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 73 L.Ed.2d 868, 882, 102 S.Ct. 3164, 3176 (1982). This right applies to the rights to control access to boat slips.  E.g, Warrender v. Gull Harbor Yacht Club, Inc., supra, 2013 WL 3989949 *17, quoting Loretto, supra

[8] “[L]ands covered by navigable waters are subject to entry only by persons whose lands abut upon such waters, and can be entered only in straight lines extending from the front of the high land to the deep water.”  Zimmerman v. Robinson, 114 N.C. 39, 47, 19 S.E. 102 (1894).

Young v. Asheville, 241 N.C. 618, 622, 86 S.E.2d 408, 411 (1955)Atlantic and N.C.R. Co. v. Way, 169 N.C. 1, 85 S.E. 12, 15 (1915); Shepard’s Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 536, 44 S.E. 39, 45 (1903)Zimmerman v. Robinson, supra.

[10] Smith v. Town of Morgantown,  supra; Pugh v. Wheeler, 19 N.C. 50, 55 (1836);Dunlap v. Carolina Power & Light Co. 212 N.C. 814, 195 S.E. 43, 45 (1938); see also City of Durham v. Eno Cotton Mills,  141 N.C. 615, 54 S.E. 453 (1906).

Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916)Wilson v. Forbes, 13 N.C. (2 Dev.) 31 (1828).  For example, the right to “wharf out” is allowed “only to a sufficient depth to permit watercraft to moor to it. The intrusion upon public trust property is minimal, and the public still has the liberty of fishing the waters under and along such wharf.” See RJR Technical Co. v. Pratt,  339 N.C. 588, 453 S.E.2d 147 (1995), reversing in part, 113 N.C. App. 511, 439 S.E.2d 176 (1994); N.C. Gen. Stat. § 146-12.