The dog days of summer have arrived, and if you are like most Garden Staters you will be seeking relief somewhere along the lovely stretches of New Jersey’s sandy coasts. But for those retreating to their own shoreside properties, there may be a fly in the suntan oil: It is just possible that you do not own what you think you do.
New Jersey has a Byzantine — and surprisingly unknown — set of ownership regulations governing its tidal lands. These riparian rights date back to England’s King Charles II, who in l660 proclaimed that all land from the ocean right up to the mean high tide mark belongs to the state. Private property begins behind that line. As the English settled the continent, the concept stuck and remains with us today — along with each state’s own confusing legal overlay, of course.
To help make sense of just who owns and is responsible for what along the shore, the New Jersey Institute for Continuing Legal Education presents “Understanding Tidelands Regulations” on Thursday, July 27, at 9 a.m. at the Holiday Inn in Toms River. Cost: $159. Visit www.njicle.com. Stuart Lieberman, an attorney with Lieberman & Blecher of 10 Jefferson Plaza off Route 1 South (732-355-1311), a firm specializing in environmental law, moderates. Other panelists include William Anderson, deputy attorney general; Stephen Giocondo, supervisor of the New Jersey Bureau of Tidelands Management; William Kresnoski, north region supervisor of the Bureau of Tidelands; and Barbara Trought, vice chair of the Tidelands Resource Council.
Lieberman has been practicing environmental law for more than 20 years ago, and has helped shape law in what has become a major issue of our age. A native of New Milford, he earned his bachelor’s degree in economics from Rutgers University in l979, followed by a law degree from Capital University in Columbus, Ohio. Shortly after law school, Lieberman clerked for Deborah Poritz, currently chief justice of the New Jersey Supreme Court. He was seeking something more exciting than the parole work in which he was then engaged.
“I remember Deborah advising me,” Lieberman says. “She said, ‘Well you can either go into pensions, or you may want to try this new enviro stuff.’” Lieberman selected the latter. He took his legal skills to New Jersey’s Department of Environmental Protection and in 2000 moved into private practice.
New Jersey defines tidelands (also riparian lands) as “all those lands now or formerly flowed by the mean high tide of a natural waterway.” This includes lands adjacent to lagoons and tidal marshes. Simply put, the state owns these lands and they are subject to CAFRA — the Coastal Areas Facilities Review Act. Keeping these lands out of the private sector means that everyone — at least in theory — has access to them. Under the law, an individual may stroll along the shore, at or below the mean high tide line, from Cape May to the Palisades without trespassing on anyone’s lands — or paying beach fees.
For the home or commercial shoreside owner, these tidelands regulations mean that they may have built on commonly held ground. “Just because your house has stood there for three generations, does not mean you own it,” warns Lieberman. “And it is wise to establish exactly where your ownership stands.” The law, of course, provides many options and variances.
Playing it safe. If a property owner is afraid that his land might be on a tidelands, he can phone the Bureau of Tidelands Management at 609-292-2573. The property in question is reviewed by the Land Use Regulation Program, and if the owner is in luck he will receive a Statement of No Interest. This letter officially states that the government holds no claim to the property in question. Pop the champagne.
Another tack is to just never pursue the ownership question and keep on enjoying your beach house, hoping the state will not come knocking. This will probably work until you try to sell the property, obtain any development permit, or pass title on through a will. If any of these events fails to catch the government’s eye, a feuding neighbor may also turn you in. (To anonymously report suspected land misuse, call 609-292-1240.)
“We are talking tens of thousands of dollars in back rent once you are caught,” says Lieberman. “I have witnessed people owing 15 years back rent totaling to $100,000.” While the land in question may be a swamp, the value is determined relative to the adjoining land. Thus the property value — and rental bill — is typically equivalent to pricey shore front lots.
The golden grant. If the state does claim ownership of your property, some tenancy or purchase agreement must be reached. By far the best of these is a tideland grant. Under such a grant, the state sells the land to the individual in a once and final transaction. In accordance with the old riparian rights custom, the owner of the adjacent property or the individual with a structure currently on it gets first crack at the sale. Unfortunately, purchasing a state grant is not likely to net you that beach front you’ve always wanted. Typically, the state only sells off as grants those tidal areas that are currently filled in.
Long and short shore. The second most advantageous link in the tideland ownership chain is obtaining a lease. Typically given for 20 years, the tideland lease works well for a business or individual property owner. But such leases are not garnered without a fair share of legal maneuvering, says Lieberman. First, the leasing candidate must search out and clear up any liens and other title claims. Secondly, he must pay for an appraiser.
Even after these steps have been completed, the lease may not be all the business or homeowner would like. The state might not lease all the property necessary. “But generally the state is willing to work with owners,” says Lieberman. “Many of my Mercer and Middlesex clients have been able to hold and enjoy beach front summer homes that way.”
Shorter term tideland use may be obtained in the form of a license. For the dredging company that needs to build a platform or the boat owner seeking to set out a dock, this provides a convenient, lower cost form of land use without the encumbrances of actual ownership.
Double disaster. “Probably the greatest number of tideland fee scofflaws come by their crime unwittingly,” says Lieberman. Virtually every shoreside resident along New Jersey’s coast erects some sort of bulkhead to keep the waters at bay. When the storm rages and the waves rise, both natural and legal disasters frequently occur.
The bulkhead crumbles, the ocean encroaches, and the beach front dweller’s sand washes south. He owns less property than he once did, and the same wave that took his sand has moved his house — not physically, but legally. He is now residing on a tideland — state owned land — on which he now owes rent. Neither life nor law is always fair.
It was joked of King Charles II that he never said a foolish thing and never did a wise one. Yet giving the public access to its own waterways was certainly one of the sharpest moves any politician ever made. The concept of time-limited, revokable use of coastal lands enriches trade and public enjoyment. This free access may frustrate shoreside land owners, but it extends enjoyment of priceless state assets to all.