Could New Jersey Have a Claim on Part of Your Waterfront Property? Understanding Tidelands & Riparian Rights

Imagine owning a house in New Jersey for years.

The yard looks like your yard.

Your deed describes the property.

You pay the property taxes.

Maybe there's a bulkhead or dock behind the house.

Then you decide to sell.

During the title process, an issue appears that you may never have heard of before:

A New Jersey Tidelands Claim.

For homeowners along the Jersey Shore and New Jersey's tidal rivers, bays, creeks and marshes, this is a real property-title issue worth understanding.

A recent social-media discussion involving a waterfront property in Ventnor brought renewed attention to riparian and tidelands claims and the problems they can potentially create during a real estate transaction.

The circumstances described in that particular social-media post have not been independently verified, so this article will not attempt to determine what occurred in that transaction.

But the underlying issue is very real.

And one of the most surprising things about New Jersey's Tidelands system is this:

Your property doesn't necessarily have to look like it was ever underwater for a State tidelands claim to exist.

Here's why.

What Are Tidelands in New Jersey?

The New Jersey Department of Environmental Protection defines Tidelands, sometimes called riparian lands, as lands that are currently or were formerly flowed by the mean high tide of a natural waterbody.

That can include land associated with:

• the Atlantic Ocean
• bays
• tidal rivers
• tidal creeks
• marshes
• former tidal waterways

The State of New Jersey owns lands presently flowed by the tide up to the high-water line and also claims ownership of certain formerly flowed tidelands identified on the State's Tidelands Claims Maps.

These lands are held in trust for the people of New Jersey and are overseen by the Tidelands Resource Council, together with NJDEP's Bureau of Tidelands Management.

Official source: New Jersey Department of Environmental Protection - Tidelands

How Can Dry Land Have a Tidelands Claim?

This is the part that can surprise homeowners.

A property may be completely dry today.

There might be a house, lawn, driveway, garage or other improvements sitting on it.

But what matters for a historic Tidelands Claim is not simply what the property looks like today.

According to NJDEP, if part of the property was historically flowed by the mean high tide of a natural waterway, that formerly tidal area may still be considered State-owned property.

NJDEP gives the example of New Creek in Newark. New Creek was a tidal stream approximately a century ago. The stream was eventually filled and the land was built over. Yet the former tidal area provides an example of land that can remain subject to the State's tidelands interest even though the original waterway is no longer apparent.

NJDEP specifically explains that formerly tidal property can remain State-owned despite having been filled and despite the former waterway no longer being evident.

That is why a house doesn't necessarily need to be sitting beside visible water today for the issue to arise.

What Is a Tidelands Claim?

A Tidelands Claim identifies an area where the State asserts an ownership interest based upon the land having been historically or presently flowed by the mean high tide.

NJDEP uses particularly important language when discussing these claims. It states that a Tidelands Claim is a:

"cloud on a property owner's title"

regardless of whether the property owner knew about the claim when the property was purchased.

That distinction is extremely important in real estate.

A title problem doesn't necessarily mean somebody recently did something wrong. It can result from an ownership question that has existed for decades.

And sometimes a real estate transaction is what finally brings that issue to everyone's attention.

What Is a Riparian Grant?

One way a historic Tidelands Claim may be addressed is through a Riparian Grant, also called a Tidelands Grant.

A riparian grant is essentially a deed from the State of New Jersey conveying its ownership interest in qualifying formerly flowed tidelands.

NJDEP explains that obtaining a grant is not automatically mandatory simply because a Tidelands Claim exists. However, a property owner may want a grant in order to clear title to property affected by the claim.

Current State policy generally limits grants to formerly flowed or filled tidelands rather than land that is currently flowed by the tide, subject to certain exceptions.

A riparian grant therefore should not be confused with permission to simply purchase whatever portion of an active waterway someone wants.

Official source: NJDEP - Instructions for Riparian Grant Applications

What About Docks, Piers and Other Structures Over the Water?

This is another important distinction for waterfront property owners.

A Tidelands License is different from a riparian grant. NJDEP describes a Tidelands License as a short-term rental agreement allowing the use and occupation of State-owned tidelands.

Licenses are commonly associated with things such as:

• docks
• piers
• mooring piles
• floating docks
• boat lifts
• certain bulkhead extensions
• marina slips
• dredging
• utilities crossing State-owned tidelands

So when purchasing waterfront property, there can potentially be several different questions:

• Who owns the land?
• Does a historic Tidelands Claim affect the property?
• Is there a riparian grant?
• Are waterfront structures properly licensed or otherwise authorized?

Those are related issues, but they are not necessarily the same thing.

Why Can This Become a Problem When Selling a Home?

Real estate transactions involve an examination of title. The buyer and the buyer's lender generally want to know that the seller can convey the ownership interest required by the contract and that unacceptable title defects will not remain.

If a previously unresolved Tidelands Claim appears during that investigation, it can create complications. Depending upon the individual property and circumstances, resolving the issue may involve title professionals, attorneys, surveyors, engineers, NJDEP and the Tidelands Resource Council.

This is one reason homeowners should avoid assuming: "I've owned it for years, so there can't be a problem." Long-term ownership by itself does not answer whether a State Tidelands Claim exists.

Likewise, the fact that previous owners bought and sold a property does not by itself establish that every possible tidelands issue has been resolved. Every property and title history is different. If you are considering selling your home, investigating these issues early can help prevent closing delays.

How Long Can a Riparian Grant Take?

This is particularly important for someone planning to sell.

NJDEP's current Riparian Grant application instructions warn: "Riparian grants require complex processing as well as the approval of state officials." The agency advises that a grant takes approximately one year to obtain.

That does not mean every Tidelands issue will take exactly one year. But it illustrates why discovering a significant unresolved issue immediately before a scheduled closing can be much more difficult than investigating it well in advance.

If you own property that may be affected, waiting until you already have a buyer and a closing date may leave much less room to address unexpected issues.

Why Ventnor Is an Especially Interesting Example

Ventnor has a fascinating history involving riparian lands.

An official Tidelands Resource Council policy concerning homes over water specifically identifies a portion of the Inside Thorofare in Ventnor as an exception to the State's general policy. According to the State, the watercourse was artificially widened in the early twentieth century with approval from the Board of Riparian Commissioners, the predecessor of today's Tidelands Resource Council.

The State explains that numerous grants have consequently been approved along that portion of the Inside Thorofare, which forms part of the boundary between Ventnor and Atlantic City.

That history isn't merely academic. Tidelands Resource Council records show Ventnor grant applications continuing into modern times. For example, State agendas have included applications involving the Inside Thorofare and former tributaries of the Inside Thorofare.

That illustrates why historic waterways and historical changes to the Jersey Shore can still matter in modern real estate transactions.

Official source: NJDEP / Tidelands Resource Council - Policy for Tidelands Conveyances for Homes Over Water

This Isn't Just a Ventnor Issue

Although the social-media discussion that inspired this article involved Ventnor, Tidelands Claims are not unique to Ventnor. NJDEP Tidelands Resource Council records contain applications involving waterfront communities throughout New Jersey.

For South Jersey property owners, the issue can potentially be relevant in communities throughout Atlantic and Cape May counties and elsewhere along tidal waterways, from Margate and Longport to Brigantine and Somers Point.

The broader lesson is simple: Don't assume a property is unaffected merely because nobody has mentioned "riparian rights" before.

Can You Check Whether Your Property May Be Affected?

Yes.

NJDEP provides mapping resources for investigating Tidelands Claims. The State's NJ-GeoWeb Tidelands Profile allows users to view GIS layers showing:

• Tidelands claim areas
• Tidelands maps
• head-of-tide information
• parcel information
• aerial imagery

However, homeowners should understand an important limitation. NJDEP cautions that its statewide GIS Tidelands layer is a reference layer. The Department says the legally valid tidelands/riparian claim line is determined from the actual promulgated Tidelands Maps at their production scale.

So an online map can be extremely useful for initial research, but it should not be treated as a substitute for professional title, legal, surveying or NJDEP review when an actual ownership issue is at stake.

Official source: NJDEP - Tidelands Profile / NJ-GeoWeb

What Should Waterfront Sellers Consider Doing Before Listing?

If you own a waterfront or near-water property in New Jersey and are considering selling, it may be worth investigating potential waterfront title issues before you're days away from closing.

Depending on the property, questions worth asking may include:

• Does the property intersect a State Tidelands Claim?
• Is there an existing riparian grant?
• Are there recorded tidelands instruments affecting the property?
• Does the property have a dock, pier, bulkhead, boat lift or other waterfront improvement?
• Are applicable licenses, permits or approvals available?
• Has the shoreline or property configuration changed historically?
• Are there title exceptions relating to riparian or tidelands rights?

A Realtor should not attempt to provide a legal determination about State ownership. But identifying the possibility early allows the appropriate professionals and agencies to investigate it before the transaction reaches a crisis point.

What Should Waterfront Buyers Consider?

Buyers should also pay attention to these issues. A beautiful dock or waterfront backyard is part of what makes many Jersey Shore properties desirable. But buyers should understand exactly what they're purchasing.

Questions involving ownership, State claims, grants, licenses, waterfront structures and permits should be investigated through the appropriate title, legal, survey and governmental channels.

This is especially important if the buyer intends to:

• replace or expand a dock
• install a boat lift
• rebuild a bulkhead
• alter the shoreline
• expand waterfront improvements
• substantially renovate or redevelop the property

Owning waterfront property does not necessarily mean every portion of the adjoining waterfront area is privately owned or that every waterfront improvement can automatically be modified.

A Waterfront House Can Have More History Than You Realize

The Jersey Shore has changed dramatically over generations. Creeks have disappeared. Marshes have been filled. Waterways have been altered. Bulkheads have changed shorelines. Neighborhoods have been developed where tidal water or marshland once existed.

But today's landscaping doesn't erase yesterday's geography.

That's what makes New Jersey's Tidelands system so interesting, and potentially so important during a waterfront real estate transaction.

A property that looks perfectly ordinary today may have a title history extending back to a shoreline that hasn't been visible for generations.

For buyers and sellers, the lesson isn't to panic. It's to investigate early.

If you're considering buying or selling waterfront property in South Jersey or along the Jersey Shore, understanding the property's title, waterfront improvements and potential tidelands history before closing can help prevent unexpected surprises later.