Of the many recent developments relating to the law of waters, Dockominiums may rank as some of the strangest. The term itself is somewhat flexible, with several courts referring to these legal constructs as ‘so-called Dockominiums.’ Others have recognized that the term can refer to different property rights —with continuous occupancy and apparent control of a boat slip as the common denominator.
Often relying heavily on condominium law, these developments may come into conflict with environmental standards, the public right to navigate and/or the Public Trust Doctrine. As apartment complexes can be converted to condominiums, some formerly public boat slips are ‘going condo’ despite legal uncertainties. Recent rulings are concentrated in the northeastern states, but relevant decisions are also found in Michigan, Ohio, Missouri, Tennessee and Wisconsin.
One primary consideration is the nature of the body of water that the development occupies. On those waters — navigable in the technical sense — where state ownership of the bed is established, the state cannot abdicate its inalienable obligation to maintain the watercourse for the benefit of the public. Other projects may exist on privately-owned waters or on artificial lakes where different legal standards apply.
Incidental Rights vs. Ownership
The incidental right of a riparian/littoral property owner to build a wharf or dock extending to the line of navigation is well-established. However, limits of those rights below the mean high-water mark (or low-water mark in some states) are seldom defined in deeds conveying the upland parcel, making a survey and division of the rights difficult.
Traditional littoral rights generally preclude exclusive control by the upland owner of the adjacent submerged land. Sir William Blackstone described riparian rights to water as “…a temporary, transient, usufructuary property…” By contrast, the concept of a Dockominium is predicated on exclusive control of a discrete parcel of submerged navigable water. Control at this level is clearly analogous to an ownership interest.
Dockominiums seem to stretch the limits of riparian law. While incidental rights in favor of the upland owner are well established, those rights are contingent on the existence of an upland to which the rights attach. Riparian/littoral rights are appurtenant to the upland parcel and generally transfer with its sale. Furthermore, the right to build a dock does not include the right to inhibit legitimate public use of a navigable watercourse. In general, the incidental right of wharfage only exists where the upland and submerged parcels are adjacent.
Some state courts have upheld the right to convey the upland parcel while reserving the riparian rights, while others do not allow the division of the upland from the associated littoral/riparian rights.
Those states that do not allow incidental rights to be severed from the upland pose additional problems for prospective developers. To circumvent the issue, developers may resort to a somewhat dubious plan. The developer sells private rights to a mailbox or lockbox located in the common area of the land portion of the Dockominium project, which then—in theory—includes appurtenant private rights to the dock or slip. The result is a grant of title to a land-based airspace of less than one cubic foot that in turn lends apparent legitimacy to the incidental rights normally associated with riparian and littoral tracts. One unusual aspect of these sales is that the incidental rights are the primary value of the conveyance, and the lockbox is a mere pretext. In many cases, advertising highlights the value of the boat slip and completely ignores the lock-box.
Seldom is the ‘mailbox’ portion of the common area directly adjacent to the water. Sale of small upland tracts may be problematic where those parcels are not contiguous with the water because parcels with no littoral/riparian boundary theoretically would not benefit from incidental riparian rights.
Public Trust Doctrine Concerns
Several landmark decisions from the U.S. Supreme Court affirm the power of the Public Trust Doctrine, requiring state governments to manage their state-owned submerged lands for the benefit of all citizens.
One questionable aspect of Dockominium projects is that they purport to create a private right on the submerged area that may be considered public navigable water under the Public Trust Doctrine. Regardless of whether the Dockominium occupant expressly claims ownership of the water or submerged land, the presumption of an exclusive right of occupation is questionable. While the Public Trust Doctrine does not require shorelines to be maintained in their natural state, it does require governments to consider possible diminishment of the public right before authorizing any private conveyance of submerged lands.
The Wisconsin decision ABKA Partnership v. Wisconsin DNR: 255 Wis. 2d 486 (2002) is one of the few cases to consider the constitutionality of converting a public docking facility into a Dockominium. The 407-slip marina was located on the heavily-traveled waters of Lake Geneva, Wisconsin.
In its rather tortured progression, the dispute was characterized by repeated reversals and modifications from prior court decisions. The circuit court affirmed the right to convert some—but not all—of the slips to Dockominiums. The appellate court reversed the circuit court decision and concluded that the conversion violated the Public Trust Doctrine. The Supreme Court of Wisconsin left the ultimate outcome from the appellate court unchanged, but supported its rationale based on a violation of state condominium statutes: “We agree with the court of appeals that the ALJ erred and that ABKA’s conversion of its marina to a condominium form of ownership violated the public trust doctrine. However, we determine that the reason ABKA violated the public trust doctrine was because it attempted to convey condominium property contrary to Wis. Stat. 30.133 (1995-96) which prohibits certain transfers of riparian rights. Accordingly, albeit with a different rationale, we affirm the court of appeals.” Read in this light, the outcome hinges on a state-specific law that might not be relevant in other jurisdictions.
Federal and State Law
Several disputes relating to federal permitting of Dockominium projects have reached the courts. Waters of the United States are subject to numerous regulatory restrictions, and the “Section 10” permits issued by the U.S. Army Corps of Engineers (U.S.A.C.E.) can be a significant hurdle for any structures placed in navigable waters as defined by U.S.A.C.E. Authority for these permits is based on Section 10 of the Rivers and Harbors Act of 1899.
Most Dockominium sales depend on the conveyance of the rights to the water rather than sale of the dock itself, as the dock is merely the physical means to reach the individual boat slip space. Inconsistent outcomes over similar disputes in different states are likely, as each state has a certain level of discretion to determine how riparian disputes are resolved.
Condominium law in many states expressly allows sales of spaces “filled with air or water.” Connecticut and Maine follow this standard. As a corollary of their statutes, any zoning restrictions prohibiting Dockominiums are barred in Maine. By contrast, Massachusetts condominium standards are limited to ‘rooms, buildings, or land,’ creating an impediment to sales of Dockominiums in that state. Developers in Massachusetts sometimes convey long-term leases to avoid potential conflict with Condominium standards.
Island Properties Assoc. v. Reaves Firm: 413 S.W.3d 392 (2013) is a recent Tennessee ruling that considers negligence charges against the firm responsible for surveying and mapping a Dockominium project. Though many of the charges were time-barred by the Tennessee statute of limitations, the level of dispute underscores the need for surveyors to exercise due diligence when surveying Dockominiums.
The status of Dockominium rights in many states remains cloudy. At present, it is debatable whether any definitive legal recognition exists for Dockominiums, either by legislative act or under common law. Despite the relative lack of precedent, new projects continue to spring up, and land use professionals will be instrumental in their completion.
Land Surveyors who are hired to survey and map properties for proposed Dockominium projects should consider these suggestions:
- Think carefully about the possible unintended consequences of any language you include on finished maps and other final documents.
- Do not assume—or be persuaded—that Condominium regulations provide a legitimate basis for ignoring existing riparian boundaries and the associated legal principles.
- Remember property boundaries as determined by riparian/littoral principles generally may not be altered by subsequent legislation or local ordinances.
- Consider carefully any requested changes to previously surveyed and mapped parcels for unintentional derogation of existing rights that may have been previously granted under earlier versions of the map.