Hi all, I just found an article by Gabriel Lopez in the most recent issue of Texas Realtor. It sheds some light on the new Supreme Court rulings on Texas beaches, public easements and private property owners. It is definitely worth the read. Enjoy...
Marcus
A new line between private property and the beach?
Court case shores up property rights for coastal properties.
by Gabriel Lopez
The Texas Supreme Court recently issued an opinion
that slightly waters down the powers the state of Texas has to enforce the Open Beaches Act. If you sell beachfront property or work with buyers interested in acquiring property at the coast, you’ll want to know about this change.
Just how do you define beach?
The Open Beaches Act, passed in 1959, sought to codify rights already granted by earlier court rulings. The act prohibited anyone from creating, erecting, or constructing any “obstruction, barrier, or restraint” that would interfere with the unrestricted right of the public to access Texas beaches (where the public had acquired a right of use or easement).
While inland easements are easy to define by their static metes and bounds, anyone who has ever gone to the beach knows that, depending on the time of day, there may be more or less beach to use. There’s also a distinction between wet and dry beaches.
Wet beaches are the zone that extends from low tide to high tide. These have always been considered public property held in trust for the people of Texas. A dry beach is considered the area between the high tide and the vegetation line. In Texas, dry beaches have remained open to the public by virtue of continuous use for as long as anyone can remember. The recent court case concerns dry beaches.
A little iced-tea analogy
If you, like me, have a fondness for sweetened iced tea in summer, you can appreciate having the perfect mix of ingredients in your glass. Any iced-tea drinker worth his weight in sugar (or NutraSweet or Extra or even Splenda) knows that balancing the tea, the melting ice, and the sugar is a skill just short of alchemy.
Sometimes you have just the perfect mix and, while you’re not looking, an oblivious server—like I was during college—refills your glass. Everything changes.
Oceanfront beaches are a little like that iced tea. They change all the time. The tide and vegetation lines shift. Beachfront property lines retract or extend when previously dry lands become submerged by the surf or dry out after being submerged. That makes public beach easements dynamic as well.
Most boundary shifts are gradual, like the ice melting in the tea. So the law does not require the state to constantly reestablish the easements each time the boundary moves. This is how public easements work along a beach. Gradual changes are accounted for, and equilibrium is maintained between private property and public easements.
What happened on the beach in Galveston
Sometimes, though, like the perfect glass of tea disrupted by a clueless server, a beach undergoes a sudden, drastic change. That’s what happened to Carol Severance, who owned several beachfront homes along Galveston’s West Beach. Hurricane Rita devastated her investment properties and moved the vegetation line dramatically up the shore.
After the storm, the entirety of one house was now seaward of the vegetation line. This made her property subject to the public easement. The state was seeking to use the Open Beaches Act to forcibly remove any structure that came to be located on what was now considered the public beach. That included the house Severance owned on Kennedy Drive.
The end of the world as we know it? Hardly…
It is extremely difficult to balance the public interest in the enjoyment of public beaches with the almost sacrosanct ability for private-property owners to exclude others from their property. Imagine if every Tom, Dick, and Harry could waltz onto your property, set up a towel, and cavort on your lawn.
The Texas Supreme Court ultimately decided that although a property owner can potentially lose property if it becomes part of the wet beach or is submerged after a natural disaster, it is not reasonable to suddenly encumber an entirely new portion of a landowner’s property that was not previously subject to a public easement.
There are those who would have you believe this will spell the end to public beaches in Texas. This is a knee-jerk reaction and a wild exaggeration. This ruling will only apply in an extremely limited set of circumstances after a natural catastrophe. The court also held that if the state wanted to preserve the public easement along Severance’s property, it could (gasp) pay for it.
To see the article click here.
To read more about the Supreme Courts ruling and opinions click here.
Marcus
A new line between private property and the beach?
Court case shores up property rights for coastal properties.
by Gabriel Lopez
The Texas Supreme Court recently issued an opinion
that slightly waters down the powers the state of Texas has to enforce the Open Beaches Act. If you sell beachfront property or work with buyers interested in acquiring property at the coast, you’ll want to know about this change.
Just how do you define beach?
The Open Beaches Act, passed in 1959, sought to codify rights already granted by earlier court rulings. The act prohibited anyone from creating, erecting, or constructing any “obstruction, barrier, or restraint” that would interfere with the unrestricted right of the public to access Texas beaches (where the public had acquired a right of use or easement).
While inland easements are easy to define by their static metes and bounds, anyone who has ever gone to the beach knows that, depending on the time of day, there may be more or less beach to use. There’s also a distinction between wet and dry beaches.
Wet beaches are the zone that extends from low tide to high tide. These have always been considered public property held in trust for the people of Texas. A dry beach is considered the area between the high tide and the vegetation line. In Texas, dry beaches have remained open to the public by virtue of continuous use for as long as anyone can remember. The recent court case concerns dry beaches.
A little iced-tea analogy
If you, like me, have a fondness for sweetened iced tea in summer, you can appreciate having the perfect mix of ingredients in your glass. Any iced-tea drinker worth his weight in sugar (or NutraSweet or Extra or even Splenda) knows that balancing the tea, the melting ice, and the sugar is a skill just short of alchemy.
Sometimes you have just the perfect mix and, while you’re not looking, an oblivious server—like I was during college—refills your glass. Everything changes.
Oceanfront beaches are a little like that iced tea. They change all the time. The tide and vegetation lines shift. Beachfront property lines retract or extend when previously dry lands become submerged by the surf or dry out after being submerged. That makes public beach easements dynamic as well.
Most boundary shifts are gradual, like the ice melting in the tea. So the law does not require the state to constantly reestablish the easements each time the boundary moves. This is how public easements work along a beach. Gradual changes are accounted for, and equilibrium is maintained between private property and public easements.
What happened on the beach in Galveston
Sometimes, though, like the perfect glass of tea disrupted by a clueless server, a beach undergoes a sudden, drastic change. That’s what happened to Carol Severance, who owned several beachfront homes along Galveston’s West Beach. Hurricane Rita devastated her investment properties and moved the vegetation line dramatically up the shore.
After the storm, the entirety of one house was now seaward of the vegetation line. This made her property subject to the public easement. The state was seeking to use the Open Beaches Act to forcibly remove any structure that came to be located on what was now considered the public beach. That included the house Severance owned on Kennedy Drive.
The end of the world as we know it? Hardly…
It is extremely difficult to balance the public interest in the enjoyment of public beaches with the almost sacrosanct ability for private-property owners to exclude others from their property. Imagine if every Tom, Dick, and Harry could waltz onto your property, set up a towel, and cavort on your lawn.
The Texas Supreme Court ultimately decided that although a property owner can potentially lose property if it becomes part of the wet beach or is submerged after a natural disaster, it is not reasonable to suddenly encumber an entirely new portion of a landowner’s property that was not previously subject to a public easement.
There are those who would have you believe this will spell the end to public beaches in Texas. This is a knee-jerk reaction and a wild exaggeration. This ruling will only apply in an extremely limited set of circumstances after a natural catastrophe. The court also held that if the state wanted to preserve the public easement along Severance’s property, it could (gasp) pay for it.
To see the article click here.
To read more about the Supreme Courts ruling and opinions click here.
Interested in Texas Coastal Real Estate? click here.
