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Water law & Title lines
A recent local issue has just surfaced that I am finding very interesting and will be following. In the South Jersey pines there is a massive age restricted development known as Leisure Town. It’s a semi gated community with a HOA but the roads are public and they receive some municipal services like snow removal and garbage collection. All residents (hundreds) pay HOA fees for the maintenance of common space areas that include a lake and dam.
The lake, presumably, dates back the 1950’s when the dam was built, it is non tidal/non navigable and lies solely on the private property of the HOA. In the decades that have passed since the lake was formed, a developer bought the land and, within the title lines, the entirety of the lake.
Across the lake, in a different municipality, residential properties. As far as the details have come out very recently, each of the waterfront properties backing up to the lake, opposite the development, all have deeds that have calls to the edge of the lake. Now here is where the plot thickens, some of these residents, over the years, have constructed docks extending into the water and most of these property owners use the lake to canoe, kayak, fish and generally enjoy the lake, while others access the lake via an upstream tributary that feeds it. Being a lifelong resident in the general area it has never come to anybody’s intention that any of this caused any sort of problem.
Just a few weeks before Christmas, in comes the controversy. The people opposite the development who bought lakefront property were either told by a realtor or seller that they had a right to use the lake, as noted above some built docks out into the water and others launched boats from the waterline of accessed it in small boats from the upstream feeders. Suddenly, those with the docks receive certified return receipt letters from the HOA’s attorney.
It turns out, the HOA’s insurance company has very recently notified the HOA that all uses of the lake by non HOA members must stop. The Attorney’s letter stated that if the docks were not removed by the owners, the HOA would remove them. Essentially, it was a cease and desist order stating all non HOA enjoyment of the waterbody must halt.
A few of the people who have received these letters have reached out to me, it seems that something brewed about four or five years ago and those waterfront owners across from the development were pressured into having their properties resurveyed, with a single Attorney charging each of them a $350 fee for filing a “corrective deed”. In talking with those who have reached out to me, I asked them the reasoning behind the resurveys and what the corrections to their deeds were, none could tell me about the deeds but they all said that they felt pressure to have the resurvey done because their neighbors were and they didn’t want to be the ones to not be good neighbors. I’m personally wondering if the correction had something to do with potentially removing any rights to the enjoyment of the lake itself.
I’m posting this because I have heard this from the people who have reached out to me and raised some red flags in my head. Not wanting to give any legal advise, I have advised those who spoke with me to find an experienced Attorney who is versed in both title issues and water law. What comes to mind, and not verbally spoken, is that the prerequisites for either prescriptive easements for those using the lake for the statutory period, or, recognition and acquiescence for those building the docks, uncontested by the HOA, could come into play.
I’ll be waiting and watching to see how this plays out and would be interested in reading what others think. In my mind, some of the longtime owners that have pockets deep enough to fight back within the legal system could potentially prevail if they meet the statutory requirements for a claim. As of now, adverse possession would not be a valid claim, absent the hostility requirement. I’d like to hear your thoughts on this situation, written as I understand the case to be.
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