This time of year we get a lot of calls regarding lake access. The calls vary but here are a few issues that come up time and time again. Many off-water lots have an easement across a lake lot for lake access. Unfortunately, many of these easements are quite old and vaguely worded. Does the access include the right to keep a dock and boat lift? What about maintenance/liability within the easement area? Can the lake lot owner landscape or make improvements within the easement area? Where is the easement located? Unfortunately you often can’t answer these questions by looking at the terms of the easement. The best solution is to buy out the easement right or redraft it with more terms that clarify what the easement holder can do (and not do) on the lake lot. If the parties can’t agree on a solution, often it is litigated and the Court will look to how the easement area has been used over the years to help interpret the original intent of the recorded easement.
Another issue arises when the lake lot or off water lot are subdivided. It should first be noted that most local zoning ordinances prohibit the creation of new lake access agreements. As a general policy, lakes can barely handle the full development of lake shore with docks every 100 feet so ordinances should ensure that non-riparian lots can’t enjoy the same rights or there is simply too many docks, lifts, boats and traffic. Historical lake easements are usually permitted as those rights vested before these ordinances were created. With that in mind, if you subdivide an off water lot with lake access, you should assume and define which new lot retains that access and clarify that the other lots will not have such rights.
Associations are another example of lake access issues. Developments vary but often you buy a lot within a large property and then covenants or other rules allow you to have a dock or slip at a common area shared by all owners. The DNR now regulates the number of slips and watercraft allowed in developments. It may be that not every lot can legally have a dock slip – even if the covenants suggest you can. Many of these covenants didn’t contemplate more modern lake living where people often want numerous boats, jet skis. The issue here is that there might not be enough room for all owners and you often can’t tell by reviewing the covenants exactly what space, if any, you will get to store watercraft.
As with every article we write, the best advice is always try to fully understand your legal rights before you purchase. Or, if you already own a lot with these issues, try to fully understand them and possibly redraft them before you list your property.
Please send any request for topic suggestions to firstname.lastname@example.org. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.