Private Waterfront Land Owners

How do I control public access?

As a waterfront landowner, what are my legal rights and responsibilities to control public use of my property? What is the scope of my ownership and what are its limitations?

You have the right to determine who can access your waterfront land:

Invitees
Licensees
Trespassers

When you choose to voluntarily allow public access to your waterfront, be informed about liability issues and Virginia’s Landowner Liability Law.

You have the right to exclude access to your waterfront land (to mean low tide).

If you allow access to any type of user (public or a defined group), you have the right to prescribe the kinds of activities and behavior that are acceptable on your property. To clarify this, you can draft a Contract for Access with the prospective users or arrange with the prospective users to Buy certain interests in the property.

Limitations to your rights have to do with Fishing, Fowling, Hunting and Taking of Oyster and Other Shellfish a colonial ordinance that to this day allows people to use intertidal areas for one of these six purposes.

Other limitations imposed by doctrine include the potential for eminent domain, takings and prescriptive easements.

What are the benefits to allowing access to my waterfront land?

Good will
Tax treatment and affordability
Income potential when land trusts or public entities purchase easements

If someone gets injured while using my land, can I be held liable?

Concern about legal liability for recreationists prevents some landowners from permitting outdoor access on their property. However, the Virginia General Assembly has addressed this concern in Virginia Code Section 29.1-509. Amended in 1982, this law exempts landowners who provide recreational opportunities to the public from liability for injury or damages provided:

the landowner does not charge a fee; there is no gross negligence or “willful or malicious failure to guard or warn against a dangerous condition, use or structure” on the property.

The property owner should eliminate obvious hazards such as open wells and falling down buildings, or fence-off and identify with warning signs any hazard that cannot be eliminated, such as a rock quarry. The landowner may wish to consider insuring the property subject to casualty and obtain comprehensive liability insurance. These are relatively inexpensive additions to standard and homeowner insurance policies. Sportsmen can be asked to help provide financial or other support in return for permission to use the lands. Fundamentally, sportsmen are responsible for their own safety and for any damages they cause to the property of others. Lease agreements and individual permit cards include codes of ethical conduct while the holders are on the property. Furthermore, landowners can require sportsmen to show proof of insurance. Sportsman insurance is available through insurance companies and national sportsman organizations.

For more information on land owner liability, Virginia code section § 29.1-509. Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc. is a good resource. To see the language of the law itself, please refer to:

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+29.1-509

Trespass violations, posting property and access issues are all concerns affecting landowner’s considerations for allowing hunting as well.

Hunters are reminded that it is unlawful to hunt on private property without the permission of the landowner and hunters must have the permission of the landowner to track or retrieve wounded game on private property.

On Posted Property:

It is unlawful to hunt without written permission of the landowner and is punishable by a fine of up to $2500 and/or 12 months in jail.

On Property Not Posted:

It is unlawful to hunt any unposted property without permission of the landowner and is punishable by a fine of up to $500.

Landowners may post their property by any of the following methods:

Using a paint mark of aluminum color paint consisting of a vertical line at least 2 inches in width and at least 8 inches in length, no less than 3 feet and not more than 6 feet from the ground or normal water surface and visible when approaching the property.
Signs that specifically prohibit hunting, fishing or trespassing on the property. Detailed information on leasing, liability and posting can be found in Extension Publication #420-035 entitled “A Landowner’s Guide to Working With Sportsmen in Virginia.”
For landowners, finding responsible hunters can provide many benefits for both the landowner and sportsmen allowed access to the property. There are benefits of having responsible hunters included as an important part of the landowner’s wildlife management plan, especially if they are absentee or do not hunt themselves. There are many in-kind benefits of such relationships including road maintenance, habitat improvement, security and safety. Reputable hunt clubs are also helpful, and lease fees can offset property taxes. Information on locating responsible hunters can be found by contacting local civic groups like Ruritans, or 4-H Clubs, sporting goods shops and area landowner contacts that participate in Tree Farm or Stewardship Programs.
Members of sportsmen’s conservation organizations that are dedicated reputable partners with VDGIF promote safety, ethics, habitat improvement and scientific management of wildlife.
More information concerning hunting on private land can be found at Virginia Department of Game and Inland Fisheries: Hunting on Private Property.

Who can own access rights?

Individuals and private user groups, federal, state and local governments, and land trusts can all own access rights. Ownership can also be held in trust by governments acting as trustees for the public at large (the public trust doctrine) or land trusts acting as trustees for the intents of the person who donated the land.

What is traditional land ownership?

Traditional land ownership included ownership of the full title, the right to eject (keep out trespassers), the right to transfer (sell or give the land way). Ownership need not be absolute; it can be split, such as by an easements or a right of way.

What is property owned in trust?

Property owned in trust consists of the property itself, the trustee or holder of the property (who will often be the manager of the property), and the beneficiary of the trust, or the person or organization who receives any benefits from the property. Land trusts – thought often set up as private charitable organizations rather than actual trusts – assist landowners in conserving their land. Land trusts can act as trustees or whole owners of property.

What is a public trust?

A public trust consists of the same three parts as a regular trust: the trust property (or the public’s right to that property), the trustee (the state), and the beneficiary of the trust (the public). The public trust doctrine is a legal concept that applies a public trust ownership to lands that have traditionally been public, such as submerged tidal lands. Because the state owns such land in trust, it cannot give the land to private owners.