Why would anyone ever need a land use attorney? Ocoee residents have experienced a situation mush like this:
Sally and Frank Lakebuyer are ecstatically happy over the purchase of Lakeacre, a beautiful waterfront estate on Lake Beautiful in central Florida. They live their happily for several years, and their kids become sun-tanned water rats – and pretty darn good water skiers. Being good parents, Sally and Frank decide to put in a slalom ski course on their lake – nothing too fancy, just 22 plastic buoys anchored to the lake bottom.
Sally and Frank do a bit of internet research, purchase a kit for a course, and in one weekend have a fun and healthy hobby ready to go on their very own lake. They ski their hearts out for a couple of weeks, until an official from the Florida Department of Environmental Protection knocks on their door and starts asking questions about the floats in the lake. “It’s our lake”, say the Lakebuyers, “here is our deed”.
Too bad, says the FDEP. Your deed doesn’t mean anything. The State of Florida claims to own the bottom of Lake Beautiful, as “Sovereign Submerged Lands”. The course has to come out!
WHAT HAPPENED?! I HAVE A DEED?! I MUST OWN THE LAKE?!
Unfortunately, that deed for your property, at least the part that extends below something called the “Ordinary High Water Line” (just a fancy way of saying how high the water normally rises on a seasonal basis) may not be worth the paper it’s written on. Here is why, and what you can and should do about it BEFORE you buy lakefront property.
When Florida became a state in 1845, the state took title from the U.S. Government of all the land below the ordinary high water line of any waters that were “navigable”. “Navigable” doesn’t mean it had to have big steamboats running up and down, it only means that the water was capable of providing commerce to the local population. A canoe with a few furs in it, or maybe firewood for the next village. The gist is, the State of Florida generally claims every lake over 160 acres as “sovereign submerged land”.
The problem is, there is usually no notice to buyers of such property – no signs, no notations on deeds – the deed you get at closing may well show that you are buying the entire property, even the lake bottom– BUT YOU ARE NOT. In many cases you even pay property taxes on the “land” that the state owns. In a final insult, your title insurance will likely not cover a claim, since it probably contained a specific exclusion for lands below the ordinary high water line claimed by the state.
As an owner of lake edge, you still retain certain riparian rights to use the lake, even if the state owns the lake bottom. But they are more limited, harder to permit, and require a “lease” fee, paid to the State of Florida.
So before you purchase lakefront property, Do these things:
First, hire a qualified Ocoee land use attorney to represent you in the closing process.
Review the Title Commitment with that land use attorney, and look for the “sovereign submerged lands” exception discussed above.
Get a Sovereign Submerged Lands Determination from the Florida Department of Environmental Protection. The right attorney can help you with that as well.
Know before you close. It may be you can live with the state owning your lake bottom. In the case of Sally and Frank Lakebuyer, there was a happy ending. With the help of Ocoee land use lawyers here at Nagel Law, we were able to obtain a Sovereign Submerged Land Lease and an Environmental Resource Permit for their slalom course, even though it wasn’t easy or cheap.
The answer is the same as most legal issues — do your research up front, and avoid a surprise later! Do you have a situation that might require some the insights of a professional, or even legal action. Call Nagel Law, Clermont’s and Ocoee land use attorney experts for a free consultation.
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