Florida boasts the longest coastline in the contiguous United States, and “waterfront” property, for many, is one of the most desirous features of real estate in Florida. Ownership of waterfront property that abuts navigable bodies of water (i.e., waters which, by reason of their size, depth, and other conditions are navigable for useful public purposes) also carries with it certain riparian or littoral rights, including the right to construct a dock, pier or wharf. (In this article, I will use the term “riparian” broadly, to include both riparian and littoral rights, as consistent with customary usage in Florida courts.)
What happens when a property owner’s waterfront rights interfere those of an adjoining property owner?
In the case of 5F, LLC v. Hawthorne, 2D19-2574, the Florida Second District Court of Appeals answered this question in a decision issued on February 26, 2021. As of the writing of this article, there is a pending motion for rehearing, so the ultimate disposition of the case is not yet final.
In Hawthorne, Mr. and Mrs. Hawthorne attempted to construct a dock from the edge of their property to the point of navigability in Boca Grande. 5F, however, owned the submerged land adjacent to Mr. and Mrs. Hawthorne’s waterfront property, and demanded payment from the Hawthornes in exchange for permission to build a boat dock across its land. The Hawthornes refused to make any payment.
After obtaining all the required permits, when the Hawthornes commenced construction of their dock, 5F filed an action for trespass and injunctive relief. The trial court ruled in favor of the Hawthornes, ruling that as riparian owners, they had the right to construct a dock over privately owned submerged land adjacent to their upland property and out to navigable water without the consent of the owner of the submerged land. The Second District Court of Appeals agreed with the trial court.
Who holds title to submerged land?
The Second District explained that the State of Florida holds title to submerged lands and this title is held in trust for the people for the purposes of navigation, fishing, bathing and similar uses. Any entity, like 5F, that obtains these submerged lands from the State is also subject to that trust obligation and cannot interfere with the riparian rights of upland owners. The Second District concluded that:
Private ownership of submerged land does not confer any right upon the private owner to require consent to, prevent the exercise of, extract payment in exchange for, or declare a trespass in connection with the exercise of a riparian owner’s right to construct a dock from his or her upland property over the submerged land and out to navigable waters in compliance with local and state regulations.”
By such holding, the Second District not only reaffirmed the public trust doctrine, but reinforced the long-held riparian rights of property owners in Florida.
Should you face a similar dispute over waterfront property rights and wish to schedule a consultation, I may be contacted at email@example.com or by phone at 239-344-1169.