Weighing Water Rights: A Brief Overview of Water Rights in Florida.
Know Your Florida Water Rights
When it comes to purchasing Florida real property that is adjacent to water, there may be water rights involved. In such cases, buyers need to conduct careful due diligence to ensure that they know exactly what they are purchasing. In the State of Florida, water rights are an incredibly complex and convoluted realm of real property law.
Water Rights in Florida: Navigable or Non-Navigable?
There are many factors that can affect the exact rights you may have to whatever water is on or adjacent to your property. In examining the property rights inherent to water features on real property, it is necessary to draw distinctions based upon the type of water. An initial broad consideration is whether the water is navigable or non-navigable.
Water is considered navigable when it is of a size and character that make it usable for public purposes. Art. X, § 11, of the Florida Constitution vests title in navigable water to the State of Florida. This means such waters are owned by the State of Florida and held in trust for use by the public. In order to determine if water is navigable, a person needs to consider whether in 1845, the year Florida became a State, the waterway was potentially useful for public commerce or recreation. If it was, then absent additional considerations, title to the waters (including the land up to the mean high-water line) is vested in the State of Florida.
This is why Florida’s beaches are owned and subject to the control of the State of Florida. For example, title to Clearwater Beach (up to the mean high-water line) and the navigable waters adjacent thereto is vested in the State of Florida. Because the waters along the coast and in bays have traditionally been considered navigable, owners of private land that borders a Florida Coastline do not enjoy ultimate property rights to the coastline. They cannot erect buildings in the water, and they cannot exclude members of the public from the beach.
Water Rights in Florida: Lakes & Ponds
Generally, non-navigable 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 as of 1845. This means that, in the case of 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, title to the water feature may vest in individual property owners (subject to certain limitations such as environmental land-use regulations). For example, the individual property owners whose holdings surround Lake Cane (a private lake with no public access) have vested property rights in the lake itself.
Important Caveats to Florida Water Rights
When considering matters related to water rights in Florida, there are a couple of items that must be noted. For one thing, regardless of private ownership claims, the State of Florida may have an interest in a water feature when it comes to preventing pollution of Florida’s aquifer or other natural resources.
In addition, title companies will usually refuse to insure any portion of land that lies beneath the surface of water (up to the mean high-water line) 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, 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.
Get Help Understanding Florida Water Rights
Florida has a lot of water in a wide variety of forms, making Florida water rights law an incredibly complex subject. If you would like clarity in relation to property you own or are considering purchasing, or have any questions about riparian or littoral water rights in Florida, please contact the Law Offices of Barry L. Miller for assistance via telephone at 407-581-2964 or email at Info@BarryMillerLaw.com