Land Under the Hudson River and Other Bodies of Water in New York State

Have you ever wondered why certain homes along the water, particularly the Hudson River and Long Island Sound are very expensive. Certainly the view of the water has always been popular, but there may be reasons under the water that makes the land valuable.

Over the years, New York State has sold its interest in the land below various bodies of water such as the Hudson River and Long Island Sound to private individuals for various reasons. This “Land under water”‘ is literally the land submerged by water, is below the high water mark on rivers and tidal water bodies, when it is below low water mark on lakes and ponds, or often when land otherwise appears to be conventional, dry upland. Thus, lands which appear to be dry and above the water, may be classified for purposes of title and ownership as ‘”land under water.” The owner of real estate on “dry land” is referred to as the “Upland Owner,” and is often benefited by actually owning the rights to the land under water.

New York State does not sell, transfer or give away the rights without considering whether the conveyance must be in furtherance of the public interest and whether such transfer would constitute an abandonment of the public responsibility to manage the public trust resource for the benefit of the public. Once a grantee (purchaser) acquires title to the soil, the State cannot take away the grant, and the new owner can exclude any other person from permanent occupation of the land underwater.

When it comes to water, there are various “ownership” rights. Black’s Law Dictionary, Fifth Edition, defines littoral rights as those “Rights concerning properties abutting an ocean, sea or lake rather than a river or stream (riparian).” Title to land under water along rivers and streams in New York which are non-navigable are generally in the owner of the riparian parcel of land. Whereas, the title to land under water along navigable bodies of rivers, lakes and streams is in New York State. The key word is navigable. The State is the absolute owner of the navigable rivers within its borders and can dispose of them to the exclusion of the riparian owners.

If the State is willing, certain upland owners will actually own the land under water, having acquired title from the State of New York somewhere within the chain of title to the upland owner. The right to use the upland parcel of property and the underwater rights becomes very important to many of these properties. If the “upland owner” owns the land under the Hudson River, that owner may be able to develop his own property in a way that his adjoining neighbor could not. For example, the rights to the land underwater may dictate the type of wharf, pier or dock the upland owner could install on the Hudson as a matter of right. Another common question is whether a person can fill in the upland property. With a land grant from the State of New York filling in or reclamation of the lands under water in front of a parcel of littoral or riparian land is a permitted method of achieving access to navigable water whether undertaken pursuant to a grant of the lands under water or in the exercise of the littoral or riparian right. The right to fill is implied in the grant of riparian or littoral lands.

Please contact our experienced New York property attorneys if you have questions related to your real property rights as a land owner in the state of New York. Our firm also handles related matters such as residential and commercial real estate transactions including but not limited to: purchase and sales agreements, title closing, real estate contact negotiations and closings associated with mortgage refinancing. For more information on real estate law in New York, please visit our New York Real Estate Lawyer blog.