Waterfront Encroachments and Easements

The Seattle PI recently raised awareness again about the efforts of the local volunteer group Friends of Street Ends, which works toward ensuring public access to the approximately 148 different street ends that run directly into Lake Washington, Lake Union, Ship Canal, and Puget Sound. They are trying to maintain, create, or open up these public property street ends as miniature waterfront access points and mini-parks for the local community. Recent negotiations regarding a specific street end on Lake Washington were reported, plus how it had all gone before the state Shorelines Hearing Board. In a somewhat unusual result, it seems that both the community and the adjoining affected waterfront property owners are fairly happy with the end result (which dictated that private/public stairs did not need to be replaced/relocated by the waterfront property owners). The owners were concerned about public intrusions onto their private property, as well as safety and disturbances that sometimes come with next-door public access, but hopefully the local community will be respectful of their rights to quiet enjoyment.

Waterfront property is valuable for its aesthetics, beauty, and access to public waterways. This sometimes creates friction when private property owners want their expensive private property privacy, and local inland community members want to share in their public access rights to the same bodies of water. Over many decades, variations on this idea also have created a very interesting and unusual array of encroachments and easements on some waterfront properties, and these are rarer to find in non-waterfront properties. Here are some examples to be on the lookout for, so that you can make your own informed decisions regarding any effects on your current or future property's values and enjoyment:

1) Encroachments onto public right-of ways. This includes the street ends mentioned above, but may also extend onto adjoining parks, boat ramps, and other examples. A survey and determination of surrounding properties can help address these questions.

2) Encroachments onto private property. Fences, old shacks, overhangs of buildings, shared walking paths or steps down an embankment, and many other types of encroachments can create issues of "understood" ownership that are contradicted by a professional survey. If next door to a commercial property, the same situations can apply there also.

3) Adverse possession. Examples such as the encroachments above, or even just access provided over many years across a person's property to the water, can create adverse possession. Adverse possession in Washington is basically "open and notorious" use of another's property continuously for over 10 years, and it can create a situation where the trespasser can claim legal right to ownership of the property even though another person actually owned the physical space per legal descriptions. I have significant qualms with that concept, but it exists nonetheless and does come up from time to time due to waterfront values and long forgotten sloppy maintenance of property lines and official permissions for accessing property. There are ways around it where a neighbor can provide access or temporary/ongoing use while still ensuring that the property will never fall under adverse possession (you can contact me for basic info and an attorney to really do it).

4) Easements. Easements are a way of life on some waterfront properties. Older communities may have a mish mash of access easements that go from inland properties and across some waterfront properties. This may have been exchanged among friends, or been part of a land deal, or sold for a relatively small exchange of value, but most importantly it usually doesn't hold any value to new owners and is only a potential source of friction regarding access rights across their property.

I personally was involved in a waterfront deal where one property encroached on an adjoining property by 5 feet, and the 5 foot encroachment rippled across 5 different properties in a row until the last one was effectively shorted 5 feet. This situation was not discovered until years after the initial encroachment (by a professional survey team who repeated their work three times due to the controversy it created). Was there ever a lot of discussion and negotiations that resulted out of that surprise finding!

The take-away from all this: it's very important to check existing surveys, information on surrounding properties, and all aspects of a full title search, plus ask around regarding any possibilities of adverse possession. All of that is not a 100% solution, but it certainly can go a long way toward eliminating surprises later.