Chapter 21 COMMON INTEREST COMMUNITIES NEAR WATER

JurisdictionNorth Carolina

21 COMMON INTEREST COMMUNITIES NEAR WATER

§ 21.01. In General

Development in and around waterways is particularly complicated in North Carolina. In addition to the usual statutes that apply to developments — the PCA, the Condominium Act, the Time Share Act and the Nonprofit Act — there are a number of additional statutes that govern and limit the manner in which development may occur around lakes, streams, sounds, rivers and the ocean in North Carolina. When a developer planning a waterfront planned community or condominium desires to include the construction of docks, piers or boat slips as part of its common area (or in the case of a dockominium, to sell as individual units), there are a myriad of other statutes, rules and regulations and government agencies the developer must contend with in getting the project approved. Development along the coastal areas of North Carolina is particularly regulated with stiff enforcement penalties for developers and associations that violate applicable rules, regulations and statutes. It is not only development, but also ongoing association operations, such as common area maintenance and architectural control, which can trigger some of the unique statutes and rules applicable to riparian or littoral land.

The dockominium is the equivalent of a condominium for one's boat or watercraft. Simply put, it is a boat slip that is capable of being bought and sold. The term is used somewhat loosely, however, because it implies the same legal structure, legal rights and obligations and incidents of ownership as those associated with a more conventional condominium. In reality, a "dockominium" is a very different creature than a condominium, and is subject to a number of different special laws governing water use in North Carolina. Further, not all boat slips in North Carolina are sold under a "condominium-style" form of ownership where an association is responsible for the maintenance of the wooden structure comprising the perimeter of the slip as common elements or the slip itself is capable of being bought and sold. For instance, some boat slips are instead "owned" by a club and it is the membership in the club (and corresponding rights of use to the boat slip) that is bought and sold in North Carolina. When one refers to a "dockominium," therefore, one may or may not be referring to a condominium-style form of ownership in the strictest sense of the word.1 In addition, the law of boat slips involves riparian water rights and the public trust doctrine, as it has been defined over the years by the appellate courts in North Carolina and as set out in applicable statutes. Such laws determine whether and where boat slips can be built, what "ownership" rights exactly are being conveyed when these slips are bought and sold, and the various statutes and government agencies in North Carolina that may have jurisdiction over the placement of marinas, piers, boat slips and dockominiums.

§ 21.02. Public Trust Waters

The first series of questions with any dock, pier, boat slip, marina, dockominium or any other structure being built in waters in North Carolina is who owns the submerged land under the water where such structures may be anchored and what people have the right to access the water where the structure is to be built. To answer these questions, one must determine whether and the extent to which the public trust doctrine applies and whether the submerged land was once privately owned or not. In essence, the doctrine prevents anyone from claiming ownership to navigable waterways to the exclusion of others. Despite the seemingly simple nature of the doctrine, it has been difficult to apply and raised a number of complicated land ownership rights that our appellate courts have wrestled with in recent years. To understand the doctrine, it is helpful to appreciate other statutes and the North Carolina constitution itself, all of which place a premium on the preservation of North Carolina's water resources for the citizenry. For example, the North Carolina Constitution provides, in part, as follows:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty . . . .2

(emphasis added).

The common heritage of this State includes wetlands, estuaries and beaches, where boat slips and marinas are capable of being built. Since the idea behind the constitution is to preserve waters "for the benefit of all its citizenry," there are a number of statutes, rules and regulations that limit the extent to which structures can be built on submerged land in North Carolina.

This constitutional duty of the State to conserve and protect the waters of North Carolina is further amplified by statute:

It is hereby declared to be the public policy of this State to provide for the conservation of its water and air resources. Furthermore, it is the intent of the General Assembly, within the context of this Article and Articles 21A and 21B of this Chapter, to achieve and to maintain for the citizens of the State a total environment of superior quality. Recognizing that the water and air resources of the State belong to the people, the General Assembly affirms the State's ultimate responsibility for the preservation and development of these resources in the best interest of all its citizens and declares the prudent utilization of these resources to be essential to the general welfare.3

(emphasis added).

Thus, in North Carolina, preservation of North Carolina's water resources are declared to be in the best interest of all its citizens, and the prudent utilization of these resources are essential to the general welfare of North Carolina citizens. Against this backdrop, there are certain "rights" citizens of North Carolina have to its waters, which are to be preserved, in trust, by the State:

Title to real property held by the State and subject to public trust rights may not be acquired by adverse possession. As used in this section, "public trust rights" means those rights held in trust by the State for the use and benefit of the people of the State in common. They are established by common law as interpreted by the courts of this State. They include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches.4

(emphasis added).

Thus, if water is subject to public trust rights, it cannot be taken to the exclusion of others, regardless of how long one uses the water to the detriment of others.

All of these constitutional and statutory mandates collectively empower the State to regulate a broad variety of development over North Carolina waters. The statute itself contains a list of what "public trust rights" are and also provides that they are "established by common law as interpreted by the courts of this State."5 The public trust doctrine implicates the unique sovereign powers of the State and has been summed up by North Carolina's courts as follows:

The public trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public. As this Court has held, public trust rights are those rights held in trust by the State for the use and benefit of the people of the State in common. They include, but are not limited to, the right to navigate, swim, hunt, fish and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches. As such, the public trust doctrine cannot give rise to an assertion of ownership that would be available to any private litigants in like circumstances. Any party, public or private, can assert title to land on the strength of a deed, but only the State, acting in its sovereign capacity, may assert rights in land by means of the public trust doctrine. Indeed, as the United States Supreme Court has stated, the public trust doctrine uniquely implicates a state's sovereign interests.6

(emphasis added).

The "public trust doctrine" is not without its limitations. There are a number of circumstances in which the "public trust doctrine" would not apply. First, the doctrine applies to waterways that are "public highways." In other words, private ponds or lakes not connected to navigable waterways are not subject to the doctrine.7 The formal "public trust doctrine" also does not apply to waters that are not navigable in fact. In Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 681 S.E.2d 819 (2009), owners of property within a gated residential community in which a lake was located filed suit against the community's developer, seeking a declaration that a fee charged to those owners desiring boating privileges was unenforceable. The trial court dismissed the case on the basis that the lake was not navigable and, therefore, the public trust doctrine did not apply. The Court of Appeals affirmed, holding that although the plaintiffs presented evidence that a canoe could be navigated a half-mile upstream from the lake and at a couple of upstream road crossings at a greater distance from the lake, there was no evidence addressing the navigability of the creek prior to the formation of the lake or that the creek was or had been navigable downstream from the lake or under the area now covered by the lake under normal conditions.8...

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