Protecting Your Virginia Riparian Property Rights & Derelict Vessels
“The Commonwealth of Virginia and other Mid-Atlantic States as well as the District of Columbia have recognized the difficulty riparian property owners face in dealing with derelict vessels and have enacted laws aiding riparian property owners in establishing express abandonment in shorter periods of time.”
The Law of Finds Would Help But it Can be Hard to Use
Finders keepers – it is not just a playground or sandlot claim of entitlement. It has important implications for residential and business property owners who discover a derelict vessel seemingly abandoned in waters next to their property. These nuisances interfere with personal enjoyment of or business practices along the waterfront of riparian property owners. But . . . does finder-keepers allow self-help in these scenarios?
The “finders keepers” concept has deep roots in many areas of the law. The maritime field expresses it through the doctrine of finds which transfers ownership of a vessel by the principle of abandonment . Proving abandonment, however, is difficult to do. Our admiralty and maritime courts strongly resist the idea that an owner would freely give up title to the vessel. A lengthy time (even years) of apparent abandonment generally is not enough to overcome the high standard that our admiralty and maritime courts impose before they are willing to allow title to pass through abandonment.
Derelict vessel dumped on shore of Elizabeth River in Norfolk
The Law of Salvage as an Alternative to the Law of Finds
When our maritime and admiralty courts decide that the proof of abandonment has fallen short, these courts often resort to the maritime law of salvage, which places maritime liens on vessels. A maritime lien secures the vessel owner’s obligation to pay for services rendered to the vessel, such as salvage services, but it does not transfer title. By way of example, the maritime lien is similar in some ways to the lien held by a bank when it lends money to a person purchasing a home. As soon as the lien attaches to the home, the home is transformed into collateral which secures the payment obligation. The bank holds the power to foreclose on the home if the homeowner fails to honor his or her payment obligation. Returning now to the discarded vessel and the law of salvage, the riparian property owner who provides salvage services to the deserted vessel can claim a maritime lien for the reasonable value of those services. If the vessel owner refuses to pay for the services, the salvor can use federal admiralty rules in court to force the judicial sale of the vessel to recoup the lien amount.
When deciding what to do with the vessel dumped at the edge of your waterfront property, an individual or business should remember that it could expose itself to civil actions such as maritime conversion (civil theft) for the disposal or destruction of the vessel. For this reason, a riparian property owner burdened by a vessel dumped at the shoreline risks exposing him or herself to liability from the vessel owner or third parties if he or she simply pushes or tows the vessel from sight, and there abandons the vessel. While it may seem appealing to remove the vessel to a location away from your shoreline, if the proof does not rise to the level constituting an abandonment by the vessel owner then the waterfront property owner must handle the deserted vessel in accordance with the law of salvage or risk civil compensatory damages and perhaps punitive damages as a result of actions that are later judged improper.
Speedboat beached and partially sunk at its mooring
Things Would be Simpler for the Waterfront Property Owner if the Vessel Owner Expressly Abandons the Vessel
The waterfront property owner might like to get out from under the constraints imposed by the law of salvage. This can happen if title to the vessel transfers away from the person who dumped the vessel and into the waterfront property owner. If title vests in the waterfront property owner, then he or she can keep or dispose of the vessel. With these ownership rights a riparian property owner need not fear civil actions for damages brought by the previous vessel owner.
While our admiralty and maritime courts in Virginia generally hold that length of time is insufficient to establish abandonment of a vessel, these courts will recognize the application of finders-keepers (under the legal doctrine of finds) where an express abandonment by the owner of the vessel has occurred. Express abandonments arise where owners publicly acknowledge their abandonment or endorse or enter into agreements relinquishing their title. An express abandonment can greatly reduce the length of time that a derelict vessel burdens riparian property rights.
Large sailboat stranded on the beach
The Solution Adopted in Virginia, District of Columbia, and Several Mid-Atlantic States
“Virginia’s abandoned watercraft statutes within the Virginia Uniform Certificate of Title for Watercraft Act shortens and sets the period of abandonment to seventy (70) days. Any vessel left on a riparian property owner’s land or the water adjacent to this land for this length of time becomes abandoned by operation of statute.”
Establishing express abandonment by an unknown owner or even a non-responsive known owner can be difficult or impossible. And, pursuing maritime liens in federal court in an effort to remove the offending vessel can become time consuming and very expensive. What can businesses or residential owners do in these situations? The Commonwealth of Virginia and other Mid-Atlantic States as well as the District of Columbia have recognized the difficulty riparian property owners face in dealing with derelict vessels and have enacted laws aiding riparian property owners in establishing express abandonment in shorter periods of time.
For instance, Virginia’s abandoned watercraft statutes within the Virginia Uniform Certificate of Title for Watercraft Act shortens and sets the period of abandonment to seventy (70) days. Any vessel left on a riparian property owner’s land or the water adjacent to this land for this length of time becomes abandoned by operation of statute. The statute, however, does not automatically pass title. Instead, it requires the burdened landowner to issue specific notices in local newspapers and by registered mail before claiming ownership. After the period for mail and newspaper notice expires, the burdened owner can then apply to the Department of Game and Inland Fisheries for title to the vessel. With the title of the vessel in hand, the riparian property owner can dispose of the burdening vessel.
Virginia’s abandoned watercraft statute does not apply to foreign-flagged vessels. It does, however, deal not only with vessels found within one’s riparian property without consent but also with vessels originally brought into the riparian property with consent but lingering longer than originally agreed. Good drafting by an experienced admiralty and maritime attorney could be quite useful in the latter scenario because the express abandonment period could be drafted into the contractual agreement between the parties with language expressly acknowledging the 70 days of abandonment after the first day of mooring, docking, or berthing or even 70 days after an event of default in the contract.