Beach ownership can change with the tides, or in certain cases, with the Court. On November 12, 2021, in Deckelbaum et al. v. Carew, et al. 16MISC000014, the Massachusetts Land Court stayed its prior ruling that held a property owner’s land included the beach seaward of the home to the historic low-water tide mark.[1] The Defendants in this matter own the neighboring property and operate a historic waterfront restaurant. They had been granted additional outdoor seating rights on the beach that abuts their property for the past two years under the COVID-19 Executive Orders by Governor Baker, which expedited expansion of outdoor seating rights. Through the litigation, the Plaintiff was seeking to restrain the Defendants’ restaurant seating on the beach, as the Plaintiff asserted ownership rights in the intertidal zone. The Court eventually agreed with the Defendants that the intertidal land between the high-water tide mark and low-water tide mark (i.e., the beach) was owned by the Commonwealth and not the Plaintiff. This unique ruling is in sharp contrast to the historic Colonial Ordinances of 1641-1647, which extended private ownership of beaches and tidelands in Massachusetts to the low-water tide mark. The Court came to this ruling after extensive briefing and motion practice, including a historical analysis of ownership and beach rights from the 1600s to the present.
Understanding complex title intricacies, deed restrictions, and applicable law is critical in determining what the rights, liabilities and obligations are for property owners within the ever-shifting intertidal zones. As COVID-19 continues to impact our communities, state and municipal agencies across the country are seeking ways to expand outdoor activities and use of public spaces. This can include activities over once-believed private property. Coastal property owners should be aware of their property lines and the limits of that ownership. Conversely, third-parties should be aware of the expansion of commercial possibilities on public property.
In Massachusetts, there are two types of tidelands: (1) Commonwealth owned tidelands between the low-water tide mark to three miles out in the ocean, which are held in trust for the benefit of the public; and (2) private tidelands between the high-water tide mark to the low-water tide mark. Massachusetts General Laws ch. 91 applies to such private tidelands, reserving an easement for the public only for the purposes of navigation, fishing and fowling. That is, under the Colonial Ordinances and M.G.L. ch. 91, a private owner with tidal access would own to the low-water tide mark while the public could only use the beach for extremely limited activities.
The Land Court’s recent ruling in Deckelbaum is in contrast to the common understanding of beach ownership and was predicated on review of a 1679 deed conveying the subject lands to the then “province” of Massachusetts Bay and the Provincetown Charter of 1727, which did not provide the new Town the authority to grant ownership to its settlors, including such private tidelands. Therefore, the land remained under the control and ownership of the Commonwealth. In Deckelbaum, as owner of the intertidal zone, the Commonwealth would be free to grant beach access rights to third-parties, including the Defendants, that extend beyond navigation, fishing and fowling, including for specific commercial uses.
The ability of a state or municipality to grant selective beach rights to a specific property owner or for a commercial endeavor has evolved far beyond the “public trust doctrine”—a medieval England theory that certain resources should be preserved for all to use. This tension between the private right and public use is prevalent in many coastal regions of the country. Property owners with coastal access will want to carefully review their historical title and confirm what rights and restrictions are placed on the beaches in their jurisdiction.
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[1] DISCLAIMER. As a matter of disclosure, DarrowEverett LLP is counsel to the non-municipal Defendants seeking to obtain rights to have continued outdoor beach seating for restaurant uses.