If you own beachfront property in Massachusetts, or are considering purchasing such property, it might save some surprises if you consult a Massachusetts real estate attorney regarding your rights and the rights of others to access your private beach.
Over the years, Massachusetts courts have only slightly increased the scope of public activities that are guaranteed to be available even on privately held tideland property. These public rights include fishing, bird hunting, and boating.
Fortunately, Massachusetts law gives coastal property owners more extensive private rights to their beachfront area than other states.
In most coastal states, there is unlimited public access to beachfront areas, and the public can stroll at will along the beach. Not so in Massachusetts. Beach-goers in Massachusetts, with few exceptions, have no right of access to any private beach down to the low tide line, unless the property owner has given permission. The land, but not the water, between the high tide line and the low tide line is known as “private tidelands,” and it typically includes the wet sand area on any non-public beach.
Private coastal property owners have full control over the beach areas adjacent to their property all the way down to the mean low tide line, with only limited public access exceptions.
The three exceptions, found in Mass. G.L. c. 91, section 1, provide public access for “fishing, fowling and navigation.”
What this means in practical terms, as interpreted by Massachusetts courts, is that, even on private tidelands, the public may:
- Fish or collect shellfish on foot or from a boat;
- Navigate, whether via raft, windsurfer, or sailboat;
- Hunt birds, whether for sport or food, on a boat or on foot. (Although there is no court decision on the issue of bird watching, the Massachusetts Attorney General has interpreted “fowling” to include watching birds, as well as shooting them.)
What this may mean for the beachfront property owner is that beachgoers may saunter onto a private beach, fishing rod in hand, and claim a right of access for fishing.
And then there is swimming. The right to swim in a private beach area is not clear. Massachusetts courts have delineated a right to swim in the intertidal zone, even on private property, as being part of the right to navigation, as long as the swimmer’s feet do not touch the bottom, which would be trespassing.
This right of access does not include walking along the wet sand to gain access for swimming. However, walking along an area below the submerged lands outside the low tide line is permissible. There is no private ownership of that land, since it is all publicly owned. The problem is that the low tide area is not usually marked and can change with changing conditions. The extent of beachfront property may also literally be eroded by winds and tides.
It is easy to see why a prospective beachfront property owner should consult with a Massachusetts real estate attorney before either purchasing waterfront property, posting signs, or otherwise asserting rights over access to or use of that property.
As experienced Massachusetts real estate attorneys, Pulgini & Norton can help you with all of your real estate legal needs. If you have a question regarding your property rights, give us a call today at 781-843-2200 or contact our office online, and we can help legally clear the way for you.
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