A Guide to Water Rights in Real Estate Transactions

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Water is one of the world’s most valuable resources, so it’s only natural that water rights should be considered when making real estate transactions. Water rights cover the use of ground water, as well as streams, rivers, and lakes. In addition, water rights are required to be able to construct a structure such as a boat ramp or dock ramp over the body of water itself.

Water Rights in Eastern States

 

Typically, all states east of Texas with the exception of Mississippi follow the riparian doctrine for water rights. This doctrine was developed during the Spanish colonial period and incorporates elements of English common law. Under riparian water rights principles, landownership is expressly tied to water rights. A property owner can not legally sever the water rights for land from the property rights.

 

Essentially, riparian water rights permit anyone who owns land which faces a body of water to use the water from it. Riparian water rights allow the property owner unlimited usage of the water surrounding the land as long as the flow of water is not altered and the water itself is not contaminated, although rights can not be used for long term storage such as the formation of a reservoir. In the case of a navigable stream or river, the property line is considered to end at the water’s edge. The state retains rights to the land under the body of water and the waterway itself is considered a public highway.

 

Water Rights in Western States

 

Western states typically follow the prior appropriation doctrine when determining who has the legal right to use water on a particular piece of property. Prior appropriation is based on the principle of “first in time, first in right” to settle disagreements over ownership of water.

 

Beneficial use is a key principle under the prior appropriation doctrine. Examples of beneficial use include growing vegetables, supporting wildlife, enhancing area recreation opportunities, or commercial uses such as growing fish in hatcheries. Water usage must be reasonable, without waste, and approved by the appropriate state controlling agency in order to qualify.

 

Selling Water Rights

 

Water rights encompass the right to use ground water, streams, rivers, and lakes for recreation, farming, or commercial purposes. Depending upon where you live, water rights to a particular piece of land can be worth several thousand dollars to prospective buyers.

 

Western states that use the prior appropriation doctrine to determine water rights allow these rights to be sold separate from the property itself. For landowners with a significant acreage, it is advisable to seek the assistance of a real estate property attorney before selling water rights. Farmers may be tempted sell water rights when it seems they can make more money from giving up their rights than by growing crops. Since water rights have a sizable impact on future property values, however, this is a decision that requires careful consideration.

 

Many people find themselves wondering how water rights and mineral rights are related to real estate transactions. In most cases, water rights and mineral rights are considered to be separate entities. Property owners are legally allowed to sell mineral rights to a piece of land without selling the water rights. However, many speculators and energy firms ask to purchase water rights when buying the mineral rights to property. Landowners who have previously sold mineral rights should review their contracts carefully to make sure they still own the water rights for the property.

 

Buying Water Rights

 

When buying real estate, it is important to make sure water rights are transferred with the sale of the property. Transfer of water rights should be conveyed in the same manner as a normal property deed. In most states, once a property owner has established beneficial use of the water, he is not required to give up water rights with the sale of the property. For this reason, you must keep in mind that appropriators are not necessarily landowners located near the source of the water in question.

 

If a particular piece of property does not have water rights, the owner may be able to buy water rights from another property and have them transferred. However, the transfer of water rights for a different purpose or at a different location requires permission of state authorities and public notice of the intended transfer. If no individual files a formal protest of the transfer, state authorities can then choose to either approve or deny the application.