Over the past two decades, we have had the honor and privilege of representing individuals on the purchase and sale of waterfront property. Beachfront property carries with it some unique risks that purchasers and buyers should beware of. Here are ten common issues that arise:
- The Public Trust Doctrine. Many purchasers may not understand that when they purchase a house on a beach, they are not buying the entire beach. Pursuant to the public trust doctrine, the public may access the portion of the beach between the high tide mark and the low tide mark. This means that at all times other than high tide, a homeowner may lose privacy for the portion of the beach below the high tide mark.
- Riparian Rights. In New York, beachfront property is typically subject to “riparian rights,” which is the right of others to traverse the land to access the water. If a purchaser reads the fine print on their title insurance policy, riparian rights will often be listed as an exception to coverage.
- Department of Health Regulations. A purchaser who wishes to construct a new home or modify an existing home may need to obtain the approval of the Department of Health for wastewater disposal. The law requires septic systems to be separated from drinking water wells and bodies of water. Therefore, it is important to consult with a professional engineer to fully understand the property limitations.
- Local Zoning Restrictions. Beachfront property is subject to laws and regulations including local zoning codes. The local municipality may impose minimum setback requirements for structures, and restrictions on docks and lighting.
- Local, State and Federal Wetlands Regulations. Wetlands are subject to several layers of regulations. Wetlands adjacent to the ocean in New York may be subject to regulations imposed by the United States Army Corps of Engineers, New York State Department of Environmental Conservation and the local municipality’s local laws and ordinances.
- HOA Rules. A beach community may share certain common elements such as a bridge, swimming pool, showers or cabana. The home may be subject to Homeowner Association rules, regulations and dues in order to maintain these improvements.
- Flood Insurance. A house near the ocean may be in a flood zone which may trigger the need for flood insurance if the purchaser obtains a mortgage. A prospective purchaser may ask their loan officer and attorney for more information on the insurance requirements.
- Endangered Species. Under federal and state law certain flora and fauna are protected pursuant to the federal Endangered Species Act of 1973. The Endangered Species Act may restrict which portions of the property can be developed or used during certain time periods. Qualified environmental professionals can survey a property for endangered species and offer advice on whether any such species are likely to and do in fact exist.
- Viewshed Protection. When purchasing property near the beach but separated from the water by other building lots, it is important to keep in mind that the view of the water may not be legally protected. Just as a new skyscraper can be constructed in the City thereby blocking existing views from surrounding properties, beachfront property owners may erect structures that negatively impact upland views of the water. In New York, there is no statutory easement for light and air. A prospective purchaser can ask their attorney to obtain a title report and/or prepare a zoning analysis and advise them on whether and to what extent the viewshed may be protected from future development.
- Lastly, and perhaps most importantly, beachfront property owners should warn their guests about the dreaded “sphenopalatine ganglioneuralgia.” Sphenopalatine ganglioneuralgia, commonly known as “brain freeze” or “ice cream headache” is caused by eating cold food or imbibing frozen drinks too quickly. According to some sources, eating and drinking slowly without allowing cold food or beverage to come into contact with the roof of the mouth can reduce the risk of sphenopalatine ganglioneuralgia. Once the uncomfortable condition has occurred, curling the tongue to the roof of the mouth or pressing one’s thumb against the roof of the mouth can help alleviate the condition.
For more information on real estate issues in New York, please contact us at (914) 338-8050 or send an e-mail to firstname.lastname@example.org. We look forward to hearing from you.
Betensky Law PLLC
118 N. Bedford Road, Suite 302
Mount Kisco, New York 10549
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