Many waterfront or near waterfront properties are sold “AS-IS”. Generally this may mean that there is something wrong with the property that the Seller does not want to take any responsibility for. The mere fact that the Contract is an “AS-IS” contract does not mean that the Buyer cannot conduct a thorough due diligence review of the property with a right to terminate. It simply means that the Seller will not be obligated to cure any identified issues, such as non-compliance with regulatory requirements. Nor does it mean that the Seller will not be obligated to convey clear title.
Properties sold “AS-IS” must contain provisions that give the Buyer adequate time to perform due diligence investigations on all aspects of the property, and to terminate the contract prior to the expiration of the inspection period if the Buyer finds, in his/her sole discretion, that the property is not suited for their intended purposes. To get a copy of the recommended Inspection Addendum.
Now that you understand “AS-IS” property better, relax and check out our Properties Page for Waterfront Property available around Sarasota right now!
According to Dr. Beach, Siesta Key is #2 in his 2016 Top Beaches in the USA list. The #1 & #3 beaches are in Hawaii. Unless you want to move to the Aloha state (as in hello inflated prices and isolation, goodbye family & friends), Siesta Key in Sarasota, Florida is the place to buy real estate. However, there are some important things to know before buying waterfront property in Sarasota & on Siesta Key.
With the start of hurricane season less than a month away, there is a “perfect storm” brewing. This storm, however, is not of the meteorological kind. It’s a storm that pits government and turtle-huggers against beachfront property owners. The regulators have become convinced that all beach nourishment is good, all seawalls are bad. This used to be a debatable issue on a case-by-case basis, but effective efforts by the turtle-huggers has ended all debate. Not that I have anything against sea turtles, but with a little effort and study, it may be possible to protect both the sea turtles and private property rights. Instead, with little to no notice to the affected property owners, the U.S. Fish and Wildlife Service adopted a regulation declaring most of Florida’s sandy shorelines “critical habitat” for the loggerhead sea turtle.
The significance of this action by unelected federal bureaucrats becomes apparent when one considers the fact that coastal construction regulations adopted by unelected Florida bureaucrats prohibits the construction of coastal armoring structures (seawalls, revetments, rip-rap, etc.) “in Federally-designated critical habitat for marine turtles”. While beach nourishment may be the “turtle safe” means to protect upland private property from the effects of critical erosion, beach nourishment typically is a time consuming process, involving both extensive permitting requirements and the acquisition of sufficient funds to accomplish the project.
In many cases, particularly following storm events, beach nourishment is not a practical means to immediately prevent infrastructure and residences from being lost. Even in the absence of a storm event, sea level rise will continue to jeopardize coastal properties. Additionally, as the use offshore sand sources for beach nourishment is discontinued due to environmental and sand quality concerns, the availability and cost of upland sand may make beach nourishment by trucking impractical.
Recently it was reported that the cost of hauling sand by truck is $40 to $60 per cubic yard. On the other hand, the cost of pumping sand from inlets is only $16 to $20 per cubic yard. As the competition for inland sand heats up with the number of coastal communities needing sand for their beach nourishment projects, the cost of hauling sand by truck will skyrocket. If protecting upland private property and public infrastructure by beach nourishment becomes unpractical, and the classification of our beaches as “critical habitat” for the loggerhead sea turtle prohibits protection by armoring, beachfront structures will be left with no protection.
To bring this important matter to the forefront so that appropriate legislative action may be taken before it is too late, I have submitted an abstract of this issue to the American Shore & Beach Preservation Association for presentation at their annual conference in October. a house and road damaged by severe storm related erosion
Please review my abstract at the following link and let me know what you think.
Whether storm induced or the effect of sea level rise, Florida’s shorelines are receding. Three-fourths of Florida’s population reside in counties along more than 1,200 miles of coastline. It has been reported that these coastal counties represent a built-environment and infrastructure whose replacement value was $2.0 trillion in 2010 and is estimated to be $3.0 trillion by 2030. The landward march of the shoreline threatens single and multi-family private residences, as well as the roads and public utilities that serve them. It also threatens the infrastructure that serves public recreational facilities along the coast. Allowing public and private investment in these improvements to become lost to the sea would cripple the State’s economy.
It has long been argued that beach nourishment is the preferred means to address the loss of uplands due to erosion; that coastal armoring will cause or accelerate erosion. However, beach nourishment typically is a time consuming process, involving both extensive permitting requirements and the acquisition of sufficient funds to accomplish the project. In many cases, particularly following storm events, beach nourishment is not a practical means to immediately prevent infrastructure and residences from being lost.
Additionally, finding an appropriate and adequate source of beach compatible sand for beach nourishment purposes is becoming increasingly difficult. Therefore, potentially coastal armoring may be the only viable option. Unbeknownst to most Florida shoreline residents and local government officials, a recent regulation of the U.S. Fish and Wildlife Service has all but eliminated coastal armoring as an option to protect upland structures. On July 10, 2014, an amendment to 50 CFR §17.95 designated significant portions of the shoreline of the State of Florida, as well as neighboring Southeast States, as “critical habitat for the Northwest Atlantic Ocean distinct population segment of the loggerhead sea turtle”.
In Florida, the construction of a seawall, rock revetment, or other rigid coastal structures below the mean high water line of the Atlantic Ocean or Gulf of Mexico, requires a State Coastal Construction Permit pursuant to the provisions of Section 161.041, Florida Statutes and the rules and regulations promulgated there under. Of particular note is Section 62B-41.0055(4), Florida Administrative Code. That rule, most recently amended in 2001, prohibits the construction of coastal armoring structures “in Federally-designated critical habitat for marine turtles”. There is no waiver or variance provision in the rule to avoid the prohibition.
Accordingly, unless circumstances allow for the construction of seawalls, revetments and the like entirely landward of the mean high water line, no State permit may be issued for the construction of rigid shore armoring to protect both private and public structures. Before the next “Big One” hits Florida, it is imperative that public sector and private property owners join forces to remove the prohibition within Section 62B-41.0055(4), Florida Administrative Code. Additionally, the same coalition of interests need to seek an amendment of 50 CFR §17.95 to provide an opportunity to protect existing structures when no other viable option is available.
The County’s Code Enforcement Special Magistrate finds the innocent purchasers to be guilty of violating the County’s “FEMA” Code even though it is undisputed that the new owners had nothing to do with creating the violations.
The County argues, and the Special Magistrate agrees, the County’s “FEMA” Code is a “strict liability” ordinance, making an innocent purchaser, who purchased the property without any notice of the violations, responsible for demolishing the ground floor improvements. Even though the information contained on the Sarasota County Property Appraiser’s webpage played an important role in inducing your buyers to purchase the property, the Special Magistrate, relying upon a Monroe County case, Monroe County v. Carter, the Special Magistrate finds that the information in the records of the County Property Appraiser should not be imputed to the County Code Enforcement office.
In other words, even though the County Building Department can use the Property Appraiser’s records as evidence of a violation, an innocent purchaser may not use the Property Appraiser’s information in their defense.
The Special Magistrate orders your buyers to demolish the ground level improvements and return the ground floor area to storage space. In so doing, your buyers will have spent approximately one-third of the purchase price on space they cannot use for living purposes.
How do you protect your future buyers from the same fate as those described herein? It is not enough to have the title work and closing performed by a lawyer who is not an expert in waterfront property law. A lawyer with expertise in this field would have known that something was wrong with the ground level improvements. In the absence of any permits of record with respect to the ground level improvements, the only way to protect purchasers from buying a potentially illegally non-conforming residence is to insist that the Sellers produce building permits for the ground level improvements.
If the Seller balks, then seek a written determination from the local government Building Official that the ground level improvements are legal. If that cannot be obtained, then either the purchase price must be adjusted to take into consideration the illegal living space and compensate the buyer for assuming the risk, or the buyer should be encouraged to terminate the contract.
It should also be noted that according to most Contracts, violation of government regulations constitutes a title defect that must be cured by the Seller upon written notice by the Buyer. If the Seller is allowed to choose the lawyer who will serve as the Title Agent, what is the practical likelihood that the Seller’s lawyer will find the illegal nature of the property and counsel the Buyer to notify the Seller of the title defect?
Buyers of waterfront property need knowledgeable lawyers whose primary objective is to protect the interests of the Buyers. And that includes title and closing services.
I love saltwater. I grew up on the New Jersey shore, just a block from the Atlantic. With the windows open and the wind blowing from the east, you could hear the ocean waves and smell the briny air. It has always been my objective to live where others go for vacation.
After law school and graduating from the University of Miami with a special law degree in Ocean and Coastal Law, the foundation was laid for my career as an attorney concentrating on Florida water law. My goal of living where others vacation was realized.
My early career, representing State and local governments, focused on environmental permitting and enforcement. When I went into private practice, joining Icard/Merrill in 1987, I specialized in marina and dock permitting, coastal construction, environmental enforcement defense, submerged lands ownership, riparian rights, and consultation with buyers of waterfront and near waterfront properties.
Since graduation from law school, there has been an explosion in federal, State, and local regulations affecting properties near the water. These regulations govern the location, size, height, design, materials, landscaping, cost, and remodeling potential of all new and existing waterfront and near waterfront properties. These regulations became so onerous, it was commonplace (and remains so) for owners to ignore them when making improvements to their properties.
To make matters worse, until relatively recent times, there was lax enforcement of the new regulations. The result is an abundance of properties with existing violations which today, when discovered, are aggressively enforced.
More and more of my time was spent representing innocent purchasers of waterfront properties who were forced to remedy violations created by prior owners, or those who purchased property only to find that due to legal matters they were unaware of, the property was unsuited to their needs. It became apparent that there was an increasing gap in the nature of legal services that buyers of waterfront property required and the scope of such services provided.
An increasing number of non-lawyers are representing buyers in the purchase of waterfront property, and those lawyers who are representing buyers are typically not performing the legal due diligence that buyers need.
The main reason this condition exists is that buyers of waterfront and near waterfront properties do not know any better, and because those that should know better are not doing a good job of educating buyers as to how to protect themselves in a transaction involving waterfront property.
As a result, it has become my “mission in life” to let buyers know “what they don’t tell them”. I will let it remain unsaid as to who “they” are, but through my website, Facebook & Twitter pages, blog, emails and other means, it will be my objective to inform buyers of waterfront and near waterfront properties of all of the questions they should be asking. They need to get these answers before committing to the purchase so that if and when they close, buyers will be satisfied that the property will be suitable for their intended purposes.
Sellers of such properties can use this information to make sure that they are able to investigate the status of their property and can be prepared to answer the questions that an informed buyer will be asking.
The lure of the sea shall continue to attract more and more paradise seekers to our shores. Assisted by the information provided by my materials, and through consultation with appropriate professionals, one’s paradise found will remain just that. Welcome to my paradise!
In a decision rendered by the Florida Second District Court of Appeal on October 31, 2003, the Court in Syvrud v. Today Real Estate, Inc., 28 Fla.L.Weekly D2505, reiterated the respective duties of sellers and their representatives in regard to the sale of residential property. In particular, the Court held that an “as is” clause in a contract for the sale of residential real property does not waive the duty imposed by Johnson v. Davis to disclose hidden defects which materially affect the value of the property.
In Johnson v. Davis, 480 So.2d 625 (Fla. 1985) the Florida Supreme Court denounced the ancient concept of “Let the Buyer Beware” as related to residential real estate, and declared the law in Florida to be:
“Where the seller of a home knows of facts materially affecting the value of property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.”
Following the Florida Supreme Court’s decision in Johnson v. Davis, the Florida Third District Court of Appeal in Revitz v. Terrell, 572 So.2d 996 (Fla. 3rd DCA 1990) held that a real estate broker could be held liable for the failure to disclose to the Buyer that the subject structure was in a FEMA Flood Zone and that the ground floor living area was built in violation of local building codes. The Court suggested that a real estate agent may be held liable for nondisclosure or misrepresentation even if the agent did not have actual knowledge of the legal status of the structure, but based upon the circumstances, should have known that the structure was non-conforming.
The Court in the recent decision in Syvrud v. Today Real Estate, Inc. emphasized that the duty of disclosure announced by the Florida Supreme Court in Johnson v. Davis extends to a seller’s real estate broker, and that a seller’s broker may also be liable to a buyer on the theories of negligence and fraudulent misrepresentation.
Under Florida law, a real estate broker or agent may be held liable for damages under a theory of fraudulent misrepresentation when the broker or agent makes a material false representation without knowledge of its truth or falsity. Young v. Johnson, 538 So.2d 1387 (Fla. 2nd DCA 1989).
With respect to waterfront property, there are way too many issues that may materially affect the value of property to enable a Broker or Agent to correctly inform Buyers about the status of the property. Frequently there are FEMA concerns, questions regarding the legality of existing structures such as docks or seawalls, the suitability of the property for development or redevelopment under coastal construction regulations or the extent to which mangroves or other wetland plants may be altered.
Thus, to avoid potential liability, Brokers and Agents should resist the temptation of offering answers regarding the legal status of waterfront properties. Buyers and Sellers must assume the burden of establishing the factual and legal status of waterfront property.
To accomplish this important task, Sarasota environmental and waterfront closing attorney David M. Levin has prepared a very valuable tool; a two part Checklist entitled, “What Every Waterfront Property Owner Should Know”. Part 1 contains a comprehensive list of questions which should be answered to ascertain the condition of property in relation to applicable FEMA regulations. The questions are to be answered by the Seller and/or appropriate public and private professionals to ascertain the legal status of existing structures.
Part 2 contains a comprehensive list of questions concerning a variety of environmental considerations. These too are to be answered by the Seller and/or appropriate public and private professionals.
The Checklists should be used by Sellers to assist them in the preparation of their disclosure statements and by Buyers to evaluate the completeness of the Seller’s disclosures.
A fully informed Buyer and Seller reduces the incidence of misrepresentation and nondisclosure. Informed Buyers and Sellers reduce the potential for conflict, and hence, reduce the potential for real estate broker and agent liability.
These Checklists were prepared as part of Mr. Levin’s continuing efforts to be of service to Buyers and Sellers of waterfront properties. They are available free of charge and can be obtained by contacting Mr. Levin at (941) 629-6319 or by e-mail at email@example.com.
It is recommended that the Checklists be used in conjunction with this website.
In the furtherance of his efforts to serve the community, you may be interested to know that Mr. Levin has recently expanded his practice to include waterfront property closings.
I am often asked, “Why should a Buyer of waterfront property hire an attorney to do the closing, and what are the benefits of hiring an attorney who limits his practice to waterfront property law?”
First and foremost, only an attorney is qualified to provide legal advice!!!
If an attorney is hired to issue the title insurance and perform the closing, this legal advice is included in the service.
An attorney can answer questions of utmost importance to all Buyers, such as,
Is the recorded legal description accurate?
What is the nature of any deed restrictions upon the use
of the property?
Will the title to the property be marketable for future sales or refinancing?
What is the zoning of the subject property and how will local zoning laws affect the use of the property?
The purchase of waterfront property requires a higher level of due diligence than other properties. An attorney experienced in waterfront property law can assist the Buyer in answering important questions such as,
What federal, state and local governmental restrictions will affect the development or redevelopment of the property?
Does the existing structure comply with applicable Flood Zone requirements?
Is the property suitable for the Buyer’s intended purposes?
Who owns the submerged lands adjacent to the uplands?
Can I build a new dock or modify an existing dock?
Do riparian rights come with the property?
Unlike a Title Company, having an attorney on the Buyer’s side can help make sure the Buyer’s interests are faithfully upheld. One of the greatest benefits of using an attorney is that the attorney has an ethical obligation to work on behalf of the Buyer’s interest.
Buyers should understand that there is a difference in the level of service between closings performed by an attorney and those performed by a Title Company. They should also be advised that with respect to waterfront property, not all real estate attorneys have the same level of experience.
To gain a better appreciation for the issues to be resolved prior to the purchase of waterfront property, Buyers are encouraged to review the two-part brochure entitled, “What Every Waterfront Property Owner Should Know”. These brochures, containing comprehensive checklists, can be obtained by contacting, David M. Levin, Esq.
Beginning July 1, 2006 all Buyers of properties either partially or totally seaward of the State Coastal Construction Control Line MUST be provided a Coastal Properties Disclosure Statement upon execution of the contract. This new statement is required to indicate that the coastal property may be: a) subject to coastal erosion; b) subject to federal, state and local regulations concerning coastal construction; c) affected by beach renourishment activities; and/or d) restricted by marine turtle regulations.
Along all of Florida ’s sandy beaches, the Florida Department of Environmental Protection has an established a jurisdictional line called the Coastal Construction Control Line (“CCCL”). The CCCL is intended to define the areas of Florida shoreline which are subject to severe fluctuations due to: storm surge, storm waves, flooding or other predictable weather conditions. Once the CCCL has been established within a coastal county, almost all construction seaward of the CCCL is regulated by the state and requires special permitting from the Florida Department of Environmental Protection.
Prior to this new law becoming effective, a Seller of coastal property was merely required to inform a Buyer whether the property being purchased was located partially or totally seaward of the CCCL. This information was allowed to be disclosed as late as the time of closing. Typically, by the time the existence of the CCCL was disclosed, it was too late to halt a transaction or seek additional information regarding the suitability of the property for development.
Under the old law a Buyer was permitted to waive their right to be informed of the location of the CCCL. This waiver was typically agreed to by unwitting Buyers who did not understand the significance of the restrictions imposed upon properties located seaward of the CCCL.
Under the new law, an amendment to Section 161.57, Florida Statutes, (which is reprinted in its entirety below), the following disclosure statement must be included, either in the contract, or as a separate document, prior to the execution of the contract by both parties (the Effective Date) for any property located totally or partially seaward of the State Coastal Construction Control Line:
“THE PROPERTY BEING PURCHASED MAY BE SUBJECT TO COASTAL EROSION AND TO FEDERAL, STATE, OR LOCAL REGULATIONS THAT GOVERN COASTAL PROPERTY, INCLUDING THE DELINEATION OF THE COASTAL CONSTRUCTION CONTROL LINE, RIGID COASTAL PROTECTION STRUCTURES, BEACH RENOURISHMENT, AND THE PROTECTION OF MARINE TURTLES. ADDITIONAL INFORMATION CAN BE OBTAINED FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, INCLUDING WHETHER THERE ARE SIGNIFICANT EROSION CONDITIONS ASSOCIATED WITH THE SHORELINE OF THE PROPERTY BEING PURCHASED.”
While the new law makes it clear that the failure to provide the required disclosure statement will not impair the enforceability of a contract or create a right of rescission, the Florida Department of Business and Professional Regulation has advised that a broker or real estate agent who had actual knowledge that the property was located in an area requiring the disclosure, and who failed to make such a disclosure, may be found guilty of violating Section 475.25(1)(b), Florida Statutes for committing misrepresentation or concealment, and may be punished under the provisions of Section 475.42, Florida Statutes.
This new disclosure law reinforces the need to have due diligence inspections and the property closing performed by an attorney with specialized expertise in waterfront property and coastal construction law. Providing a prospective Buyer of coastal property with a clear understanding of how to comply with federal, state, and local regulations will ensure that the sale or purchase of property located in the Coastal Zone takes place both quickly and seamlessly.
As always, any real property closing performed by David M. Levin, Esq. includes the due diligence inspection, involving an evaluation of federal, state, and local coastal construction regulations, AT NO EXTRA CHARGE.
Full Text of New Law
Florida Senate – 2006 SB 1948
CODING: Words stricken are deletions; words underlined are additions.
16 161.57 Coastal properties disclosure statement.–
17 (1) The Legislature finds that it is necessary to
18 ensure that the purchasers of interests in real property
19 located in coastal areas partially or totally seaward of the
20 coastal construction control line as defined in s. 161.053 are
21 fully apprised of the character of the regulation of the real
22 property in such coastal areas and, in particular, that such
23 lands are subject to frequent and severe fluctuations.
24 (2) At or prior to the time a seller and a purchaser
25 both execute a contract for sale and purchase of any interest
26 in real property located partially or totally seaward of the
27 coastal construction control line as defined in s. 161.053,
28 the seller must give a written disclosure statement in the
29 following form to the prospective purchaser which may be set
30 forth in the contract or in a separate writing:
1 The property being purchased may be subject to
2 coastal erosion and to federal, state, or local
3 regulations that govern coastal property,
4 including the delineation of the coastal
5 construction control line, rigid coastal
6 protection structures, beach nourishment, and
7 the protection of marine turtles. Additional
8 information can be obtained from the Florida
9 Department of Environmental Protection,
10 including whether there are significant erosion
11 conditions associated with the shoreline of the
12 property being purchased.
14 (3)(2) Unless otherwise waived in writing by the
15 purchaser, at or prior to the closing of any transaction where
16 an interest in real property located either partially or
17 totally seaward of the coastal construction control line as
18 defined in s. 161.053 is being transferred, the seller shall
19 provide to the purchaser an affidavit, or a survey meeting the
20 requirements of chapter 472, delineating the location of the
21 coastal construction control line on the property being
23 (4) A seller’s failure to deliver the disclosure,
24 affidavit, or survey required by this section does not impair
25 the enforceability of the sale and purchase contract by either
26 party, create any right of rescission by the purchaser, or
27 impair the title to any such real property conveyed by the
28 seller to the purchaser.
While there are many obstacles facing local beach nourishment projects, i.e., funding, source of sand, potential impacts to birds and turtles, and public opposition, the question of the constitutionality of the State statute which authorizes such public beach projects will no longer be an impediment to moving forward to restore area beaches.
Since 2006 when a decision of the Florida First District Court of Appeal finding the Florida Beach and Shore Preservation Act to be unconstitutional was appealed to the Florida Supreme Court, local governments have been uncertain regarding the legal status of their proposed beach nourishment projects. When on December 18, 2008 the Florida Supreme Court refused to reconsider its decision rendered on September 29, 2008, the Court’s determination in Walton County v. Stop the Beach Renourishment, Inc. upholding the constitutionality of the Act may now be considered final.
In substance, the Florida Supreme Court upheld the constitutionality of the Florida Law which authorizes the government’s unilateral placement of sand between an upland beachfront property owner’s property boundary and the waters of the Gulf of Mexico, cutting off the property owner’s contact with the water. The Beach and Shore Preservation Act mandates that the upland beachfront property owner’s legal rights of ownership terminate at the pre-fill shoreline, recorded as the Erosion Control Line, and that the nourished beach between the Erosion Control Line and the new water line shall henceforth be public lands.
The Florida Supreme Court held that under the Act, while the upland beachfront property owner would retain traditional riparian/littoral rights of ingress, egress, view, boating, bathing, and fishing, local governments may cut off a property owner’s direct contact with the water without any recourse to the upland property owner. The Court held that provided the upland beachfront owner still has access to the water, the owner does not lose any protected legal interest when contact with the water is eliminated by a beach nourishment project.
In addition to resolving a hotly contested dispute of significant interest to local governments and beachfront property owners, the Florida Supreme Court’s decision is extremely helpful as a comprehensive summary of Florida Law regarding riparian/littoral rights. It is for that reason that I highly recommend all real estate professionals take a few minutes to read the decision.
The U.S. Supreme Court has just released its long-awaited decision in a landmark Florida case concerning ownership rights along Florida’s beaches. The decision styled Stop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection upholds a determination by the Florida Supreme Court that when a state authorized beach renourishment project adds sand waterward of privately owned uplands, the newly created beach is publicly owned, and the upland property owner is not entitled to damages as a consequence of its loss of some common law riparian rights due to the separation of the upland property from the waters’ edge.
While under the challenged State Statute (Section 161.191, Florida Statutes) regarding beach renourishment, beach front owners would retain common law riparian rights such as the right of access and unobstructed view to the Gulf or ocean waters, the upland owners would no longer have the riparian right to expand their property ownership due to the slow and imperceptible addition of sand, known as accretion.
Beachfront property owners in the City of Destin and Walton County, in Florida’s panhandle, had challenged a proposed beach renourishment project on the grounds that the resultant improvement, under the provisions of relevant State Statutes, would deprive the owners of the valuable riparian right of accretion, without just compensation.
The U.S. Supreme Court upheld the determination of the Florida Supreme Court that beach front property owners do not have a protected property right to be able to maintain contact with the water. Thus, when the State authorizes the placement of fill between the beach front property owner’s property and the water’s edge to create a new beach, while the upland owner no longer has exclusive rights between the waters edge and his upland property, and no longer is entitled to natural accretions to his land, as long as the beach owner retains the legal right to access the waters, according to the U.S. Supreme Court, the property owner has lost no property right for which compensation must be paid by the State.
This case could have devastating consequences for private property owners who own property along renourished beaches which are impacted by the Deep Water Horizon oil spill. The damages to beaches that are likely to occur from the spill may not be considered as damages to the upland owner if such damage takes place waterward of the recorded Erosion Control Line. It may be difficult for a private upland property owner to prove a loss of property value due to damages to beach area which the owner no longer owns due to the beach renourishment project.
I will continue to analyze the impact of the U.S. Supreme Court’s decision and will revise this report as necessary.