Private Waterfront Landowners


Rights of access to the coastline can be acquired separate from the land itself through the use of easements. An easement allows the easement holder the limited right to use another person’s land for the specific purposes described in the deed granting the easement. The landowner retains full ownership of the land and can use it in any way that does not interfere with the rights granted in the easement. Some easements are voluntary grants by a landowner to a user, while others are imposed by law.

What forms of voluntary easements can be used to facilitate access?

General Easements
Any landowner can grant or sell an easement to another party. Generally speaking, this will give that party the limited rights set out in the easement agreement. In the context of access, the easement may provide certain persons or categories of persons with the right to cross a certain portion of the property to access the water. However, the landowner would at all times retain ownership of the property.

Conservation Easements
A conservation easement is created when a landowner voluntarily limits, by sale or donation to a land trust or other public interest entity, the uses of the property for the purpose of protecting natural resources. It can also spell out how and whether the public has access rights to those natural resources. A conservation easement can be held by the government or by a non-profit or charitable trust that has conservation purposes. The conservation easement “runs with the land,” meaning it is remains in place even if the land changes hands, and is therefore considered a permanent protection. There are important tax implications and benefits associated with buying or donating a conservation easement (including decreased property, income, and estate taxes) and landowners should work with a lawyer or a land trust to explore the options.

Not exactly an easement (though the terms are often confused), a covenant is a written legal promise contained in a contract or deed. With a covenant, a landowner agrees to certain limitations on the property’s use. The details of those limitations are set forth in the covenant, which is a legal agreement tied to the property. Another party, such as the state, can enforce the covenant. For more information, see Acquiring and Transferring Access.

Can my property be subject to non-voluntary easements?

Generally, a landowner has the right to exclude the public from his property. But in limited circumstances, a landowner may be subject to legally imposed easements. In the context of coastal access, these easements might include a public easement based on the public trust doctrine, which allows public use of the shore below the mean high tide line. On occasion, easements may sometimes be imposed if paths or walkways have been traditionally used to cross private property for access to the water.

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