The Best of the Legal Hotline: Riparian Rights and Piers


 Tracy Rucka  |    August 09, 2021
Legal Hotline

Wisconsin is fortunate to have thousands of lakes and thousands of miles of rivers and steams. Chances are you will find yourself in a transaction where the buyers and sellers are discussing piers. This month’s hotline article provides resources and answers about piers. 

A buyer is concerned that a pier/dock is not included in the sale of a home because the seller is asking the buyer to pay for it separately if the buyer wants it. It was not specifically mentioned in the offer to purchase, however it was indicated in the “exterior features” of the home on the MLS. The buyer thought this meant the pier was being conveyed with the home. How to proceed?
 
The WB-11 Residential Offer to Purchase on lines 17-18 informs buyers and sellers that the offer, not the listing or marketing materials, determines what is or is not included in the sale. The WB-11 definition of “fixtures” at line 36 includes docks and piers on permanent foundations. Therefore, if the pier is on a permanent foundation, it is included. If, on the other hand, it is removable or portable, then it would need to be specifically listed as an inclusion to be part of the sale.

The buyer and seller have an accepted offer on a lake property. The buyer just received the loan commitment from the lender, and one of the conditions on the loan commitment is that the pier needs to be removed from the offer to purchase. The buyer doesn’t want to do that because they want to ensure that the removable pier sections are being left. How can the agent proceed so that the underwriter gets what they’re looking for and the buyer is still protected? 

Removable piers are personal property, and it is understandable why the lender has made the request. However, the broker and buyer must proceed with caution to assure any amendment to the offer accurately reflects what is occurring to avoid mortgage fraud and simultaneously assure the piers are sold to the buyer and not removed by the seller. To have an amendment stating the piers are no longer a part of the offer allows the seller to remove them. To just say the piers are not a part of the transaction, and the buyer and seller have a side deal to leave them, could be considered mortgage fraud. Likewise, using phrases such as “left at convenience of seller” or “no value,” when there is, could also be problematic. 

The broker has a lake property listed. After the offer was accepted, it was discovered there is a 10-foot-wide easement over the property to provide access to the lake for an adjacent landowner. The buyer wants to know if he can block the owner of the backland from crossing over the easement to get to the lake. How should the broker advise the parties about these questions? 
  
The Wisconsin Statutes, in §§ 30.133 and 31.131, regulate riparian easements and pier placement. Wis. Stat. §30.133 prohibits the conveying of riparian rights except the crossing of land after 1994. The law ended the right for a riparian owner to convey the right of a non-riparian owner to build a pier; however certain preexisting easements may be grandfathered. Because the value of the property and the rights in the easement are unique in each easement, it is important to make sure that buyers and sellers of property subject to easements understand the meaning of the easement language. There are several Wisconsin cases addressing the scope of easements and riparian rights, therefore REALTORS® should encourage parties to seek the advice of legal counsel to help them better understand the meaning of the easement and the scope of the rights conferred. 

The broker will best serve the potential buyer by referring the potential buyer to private legal counsel because the broker cannot give legal advice. The broker may work with the title company to obtain a copy of the easement to facilitate review by the buyer’s attorney. The broker may suggest that the buyer and the owner of the backland speak with an attorney and the Wisconsin Department of Natural Resources regarding riparian rights and the rights of easement holders.

If a pier is included with the purchase, is the lake aerator attached to the pier also included?
 
The first question is, did the buyer and seller specifically include the aerator in the offer? If not, the fixture provisions of the offer to purchase provide some general guidelines for analyzing such items. For the aerator to be included as a fixture, is must be an item of property, which, under certain circumstances, may be treated legally as personal property, but which has become so attached to land or buildings, or is used in such close association with the land or buildings, that it is treated as a part of the land. The courts have attempted to lay down certain tests to determine when an article takes on the character of a fixture. (1) Is the article physically attached? Is it easily removable without damage to the premises? If it cannot be removed without serious damage either to the item or premises, it is practically conclusive that it is a fixture. (2) Is there a special adaptation between the article and the premises? (3) What is the intent of the person attaching the article to the premises? Are there general community “customs”?

If the parties are unable to reach a resolution about the lake aerator themselves or a financial adjustment therefor, they may be referred to private legal counsel to review the transaction. If the parties cannot agree, these questions may need to be resolved by the court. 

See pages 11-12 of Legal Update 03.11, “Overcoming Residential Transaction Obstacles,” at www.wra.org/LU0311 for a discussion regarding fixtures. 

The buyer is considering purchasing a waterfront property. What information may the broker provide on riparian rights?
 
In Wisconsin, a person who owns land on a lake or river has what are known as riparian rights. These include the right to use the water adjacent the property, the shoreline and the water, and access to the water. The riparian owner’s rights are regulated by statute, the public trust doctrine, shoreland zoning and local ordinances. The Wisconsin Department of Natural Resources (DNR) provides one of the most comprehensive sources for information at https://dnr.wisconsin.gov/topic/Waterways.

Resources

Piers

• General information about piers and waterway recreation in Wisconsin: dnr.wi.gov/topic/waterways/recreation/piers.html

DNR Pier Planner

Public Trust Doctrine  

Shoreland zoning

Mitigation plans

  • If the property is subject to a shoreland mitigation plan, that plan must be recorded with the county. The owners may contact the registrar of deeds or the title company for copies of any recorded mitigation plan. See pages 3-5 of the September 2010 Legal Update, “County Shoreland Zoning Rules,” at www.wra.org/LU1009, and check with the county zoning authority for any applicable specific rules.
  • A copy of Wis. Stat. Chapter 30: http://docs.legis.wisconsin.gov/statutes/statutes/30

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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