Homes are bought and sold all the time in Cape May, Stone Harbor, Avalon, Sea Isle and other coastal communities. But what should be a simple sale of real estate can quickly become complicated, frustrating and expensive if the property is affected by a tidelands claim.
Tidelands, also known as riparian lands, are all lands that are currently and formerly flowed by the mean high tide of a natural waterway. Back bays are an example of tidelands. But tiny tidal streams that flowed over a century ago and have since been filled in and built over are also tidelands.
This is important to sellers and buyers of real estate because the State of New Jersey claims ownership of these tidelands based upon historic maps, and holds them in trust for the people of the state. All tidelands are regulated by the Tidelands Resource Council, a board of 12 Governor-appointed volunteers, along with NJDEP staff at the Bureau of Tidelands Management. The Tidelands Resource Council, however, makes all ultimate decisions with regards to tidelands.
Since tidelands are public lands, to use these lands you must obtain written permission from the state and pay a fee. Common uses of tidelands include installation of docks, mooring piles, bulkheads and other fill materials, but also can include a home. Some tidelands may be sold by the State to a property owner in the form of a Riparian Grant while others may only be rented through either a Tidelands License or Lease.
A riparian grant is a deed from the State of New Jersey for the sale of its formerly flowed tidelands but have since been filled in. The State-owned section of the property is known as a tidelands claim. It is a cloud on a property owner’s title and it does not matter whether or not that property owner is aware of the claim at the time of purchase. Obtaining a riparian grant is not mandatory, but it may be a good idea to do so in order to clear title before a sale can proceed.
A tidelands license is a short term rental agreement from the State of New Jersey for the use of its currently flowed tidelands. Licenses must be procured for the following uses:
- Fixed structures (i.e. docks, piers, mooring piles, floating docks, boat lifts, riprap) constructed on currently flowed tidelands
- Bulkhead extensions that exceed or will exceed the mean high water line
- Yacht and boat club structures
- Dredging within state-owned tidal water
- Utilities or utility-related structures (i.e. pipes, cable lines) that cross over or under state-owned tidelands
A tidelands lease is a long term rental agreement from the State of New Jersey for the use of currently flowed tidelands. Leases are only issued for projects that involve long term financing issues such as homes that have been constructed over water or large scale development projects. Smaller construction projects over currently flowed tidelands require a tidelands license rather than a lease. Leases must be obtained for all proposed construction as well as any past construction regardless of whether or not the current property owner is responsible for that construction. The state does not grandfather homes over water with respect to tidelands conveyances, and other approvals – such as a zoning variance or a Coastal Area Wetlands Act Permit – may also be necessary in addition to resolving a tidelands claim.
Nehmad Perillo & Davis, with offices in Avalon and Egg Harbor Township, is a team of skilled attorneys who focus on the development and conveyance of real estate and related business matters and litigation. Nehmad Perillo & Davis can be reached at (609) 927-1177 or by visiting www.npdlaw.com.
This article does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact one of the attorneys at Nehmad Perillo & Davis directly.
