WEIGHING WATER RIGHTS: A BRIEF COMPARISON OF PRIVATE AND PUBLIC WATER RIGHTS.
By: Barry L. Miller, Esq. of Barry L. Miller, P.A. Offices Orlando.
When it comes to purchasing real property adjacent to water, certain considerations need be made by a buyer to ensure the buyer(s) is indeed purchasing what they believe they are purchasing. Water rights in the State of Florida are an incredibly convoluted and complex area of real property law.
So what property rights do you have in the water on your property? The answer, it depends. Generally, the State of Florida has a vested right in control and use of navigable waters within its boundaries. In examining the property rights inherent in water, it is necessary to draw a distinction based upon the type of water. That is, whether the water is navigable or nonnavigable.
Art. X, § 11, of the Florida Constitution vests title in navigable water to the State of Florida. Generally, bodies of navigable water—that is, water is navigable when it is of sufficient size and character that it may be used for public purposes—are owned by the State of Florida and held in public trust for the use of the public. In order to determine if water is navigable, and thus held by the State of Florida, a person need to consider whether in 1845, the year Florida became a State, the waterway was potentially useful for public commerce or recreation. If so, absent additional considerations, title to the waters (including the land up to the high mean water line) is vested in the State. It is important to note however, that title to lakes, ponds, swamps, or overflow lands, that have been conveyed to private individuals by the United States or by the State of Florida without reservation of any public rights, may vest in individual property owners (subject to certain limitations such as environmental land-use regulations). For example, title to Clearwater Beach (up to the high mean water line) and the waters adjacent thereto is vested in the State of Florida, whereas individual property owner’s surrounding Lake Cane (a private lake with no public access) have vested property rights in the lake itself. This is also why beaches are owned and subject to the control of the State of Florida. To illustrate, private landowners whose land borders a Florida Coastline do not enjoy ultimate property rights as it pertains to the coastline; they cannot erect buildings in the water, and they cannot exclude members of the public.
Generally, nonnavigable waters such as lakes and ponds are subject to private ownership to the extent that the State of Florida has not maintained any reservation of rights therein and provided that the lake was not depicted as being a property owned by the State of Florida in 1845. It is important to note however, that, despite the water being privately owned, the State of Florida may have an interest in the water to prevent against pollution of Florida’s aquifer or other natural resources. Title companies will generally not insure any portion of land lying beneath the water’s surface (up to the mean high-water land) due to uncertainty in the ownership thereof as the public may maintain a right in the lake itself and determining true ownership of water is difficult, at best. Generally, it is important to note that when multiple property owners own a tract of land bordering a lake, that such owners have a right to use the entirety of the lake, not just the portion which they own. They are able to use the lake provided their use does not reasonably interfere with the other owners use of the lake.
If you have questions regarding any riparian or littoral rights you may have, contact the Law Offices of Barry L. Miller for assistance via telephone at 407-581-2964 or via email at [email protected]