Acquiring and Transferring Access
overview
People who want access to a beach or shoreline across private property have two options: they can purchase the land outright, or they can acquire a limited right—often called an easement—just to cross the property.
Landowners may transfer (“convey”) all or part of their ownership interest—by sale, gift, or other legal instrument—to another party. When granting a limited right of access, the landowner can specify how the land may be used and reserve the option to reclaim the right if its conditions are violated.
These transfers are usually formalized through a written contract, but they can also occur via a will or other legal document.
common questions:
What rights of access can be transferred?
to whom can access be transferred?
how can access be enhanced, secured, granted, or created?
What are the tools for retaining coastal access by conserving coastal lands themselves?
What existing programs can help with the transfer of land that includes access rights?
Where can I find more information?
What rights of access can be transferred?
Public access rights can be transferred in full interest of private property rights, or partial interest, as in easements or user agreements.
to whom can access be transferred?
Landowners can transfer interest of their land to individuals, or to entities, organizations and agencies that have public access as part of their purpose, which can include land trusts, local, state and federal governments, and private trusts.
how can access be enhanced, secured, granted, or created?
Parties can transfer property ownership interest (either the complete title, or a subgroup of rights) through a variety of means, including buying it outright, or partially through easements, conservation easement, development rights, or leases. These interests can be purchased at or below market value, or can be donated depending on the wishes of and related tax benefits to the private property holder. The interests can be conveyed unconditionally or with conditions attached.
If the property owner is not a willing seller, the government can exercise its rights to acquire the land through eminent domain. Learn more about eminent domain.
What are the tools for retaining coastal access by conserving coastal lands themselves?
Sale or donation of easements or partial property interest: Easements allow the right to the use of real property interest of another person for a specific purpose. There are a number of kinds of easements and ways that they can address access, including conservation easements and floating easements. Because easements are not necessarily subject to the entire parcel, they are significantly less expensive than full title acquisition and are becoming an important and increasingly common tool for addressing coastal access needs. Learn more about easements.
Development rights can be separated from other rights of ownership, making it possible for one person to own the property while another person or entity (such as a land trust) owns the right to develop it. Usually development rights are separated for the purpose of preventing the development of the property. Development rights can be transferred in one of two ways:
Purchase of development rights (PDR) involves payment by a private entity, such as a land trust, or a public entity, such as a town, city, or county in exchange for an easement or covenant that limits future development on the identified property. This tool usually has a minimum required effective lifetime of twenty years, and is often designed to be permanent, reversible only by the court.
Transfer of Development Rights (TDR) is a technique for guiding growth away from sensitive resources and toward controlled development centers through the transfer of development rights from one area to another. In this case, development rights in coastal areas would be restricted by the town and the landowner would be compensated for the restriction. The town would then recover the cost of the restriction by selling the development rights to developers in other specially designated areas, allowing them to develop more densely than they otherwise would be permitted.
Developing covenants or written promises about the land: Covenants can be used to specifically address ways that landowners legally promise to address water access on their land. Some examples include:
Land banking is a method of land conservation typically involving the outright purchase and holding of entire parcels of land. Privately financed and operated, nonprofit land trusts traditionally have used both PDR techniques and land banking, but states and municipalities also have used the land banking tool to conserve farms, forests, coastal lands, etc. Specifically, Washington, Florida, New York, and North Carolina have established land-banking programs to help preserve coastal properties. The Land for Maine’s Future program is a variation on the land banking approach. See Real Estate Transfer Taxes, Land Banking, and Lessons for Maine case study for more information.
Several means have been used to fund land banks, including:
- Real estate transfer tax (RETT). Depending on the enabling legislation in the given state, this tax may be levied at the state or local level. In Maine, the majority of the RETT revenues collected are allocated to the state’s general fund, but notably, legislation passed in the 1980s directs a percentage of those funds to the HOME Fund for affordable housing. The HOME Fund was authorized in 1982, and beginning in 1984 was funded through allocations from the state’s RETT. The statute designates RETT funds to be allocated 45% to the state general fund, 45% to the HOME Fund, and 10% to the counties. Actual allocations to the home fund tracked since 2000 indicate that the percentage to the HOME Fund has varied from a high of 45% in the earlier years, to as little as 7% in 2009. Attempts to increase the Maine state RETT rate (less than one-half of one percent) have repeatedly failed. More on Real Estate Transfer Tax; also see Real Estate Transfer Taxes, and Land Banks case study.
- Bond financing uses long-term promissory notes issued and backed by the government, for funding at the state or local level. Bond financing can be enacted at the state or local level. In a Maine example, the Working Waterfront Access Protection Program (WWAPP) has been successful when embedded within larger requests for a Land for Maine’s Future bond. In a local example, the town of Tremont, Maine purchased a working waterfront property from a private seller at foreclosure. The voters of Tremont authorized the Town to finance the purchase with a loan from a local bank. See Tremont, Maine Bond Financing case study.
- Other financing strategies include dedicated excise taxes and financing purchases through the State’s general fund (generally via broad-based income and sales taxes).
What existing programs can help with the transfer of land that includes access rights?
Land for Maine’s Future Program
The Land for Maine’s Future Program was created in 1987 in response to concerns over the loss of critical natural areas and wildlife habitat along with traditional access to undeveloped lands for hunting, fishing, and outdoor recreation. To date, the Land for Maine’s Future Program has funded the protection of more than 445,000 acres of Maine’s best natural areas, farms, and recreation areas. The program also seeks to protect public access to water for fishing, boating, and swimming. Working with other state agencies, numerous local governments and charitable nonprofit groups, the Land for Maine’s Future Board adheres to a “willing seller only” policy. Contact: Department of Agriculture, Conservation and Forestry
Working Waterfront Access Protection Program (WWAPP)
As a part of the Land for Maine’s Future Program, the Working Waterfront Access Protection Program (WWAPP) provides public funds to help acquire land that will preserve access for commercial fishing uses. Financial awards may be used for projects that include land used for walk-in and small boat access for worming, clamming and similar harvesting activities; property dedicated in entirety to aquaculture and commercial fisheries use; or mixed use properties where the portion used to support commercial fishing business can be clearly delineated and secured. There is a strong program preference for projects that protect and secure use of existing, established fishing access sites and facilities over projects that might involve development of new access sites and facilities. These funds are available to private businesses, cooperatives, municipalities, or other qualified organizations for projects that will provide permanent waterfront access to commercial fisheries business.
As a condition of any acquisition or grant made under the program, the property may not be used, altered or developed in a manner that precludes its use by aquaculture and commercial fisheries businesses. This protection is to be assured through a Working Waterfront Covenant or other appropriate legally binding deed restriction. The purpose of the Working Waterfront Covenant is “to control, either directly or indirectly, the use, ownership and sales price of working waterfront real estate for the primary purpose of making and preserving the permanent availability and affordability of that real estate for commercial fisheries businesses.” The public interest is in protecting or enhancing the aquaculture and commercial marine fisheries or related businesses in the state. As an additional condition, the state retains a permanent right of first refusal on any property receiving grant allocations.
More information is available at www.wwapp.org.
Land Trusts
Land Trusts and conservation organizations can serve as third party interests in addressing access issues. For more information, contact Maine Coast Heritage Trust and Maine Land Trust Network, the Land Trust Alliance, and The Trust for Public Lands.
Where can I find more information?
Conservation Options: A Guide for Maine Landowners, Maine Coast Heritage Trust, 2003.
Legal Tools to Enhance Public Coastal Access While Protecting Private Property Rights. By David Kallin and Rita Heimes, University of Maine School of Law Marine Law Institute, March 2008.
Tax-based Opportunities and Challenges for Working Waterfront Protection
By Michael Dixon, University of Maine School of Law, July 2010.
Working Waterfront Tax Strategies (PDF 216 KB)
By Steven R. Gerlach, Esq., Bernstein Shur, Counselors At Law, September, 2010.
Case studies:
Scarborough Beach
Scarborough Beach’s long-uncertain public access was secured when the state – supported by Land for Maine’s Future and the Trust for Public Land – purchased the beachfront parking and right-of-way in 1999, ensuring permanent, publicly managed access to this coastal resource.
The Sewell Bridge Dock
Private fishermen and the York Land Trust partnered to purchase and protect the Sewall Bridge Dock, using a conservation easement to ensure the property remains working waterfront, maintains some public access, and preserves its scenic and economic value for the community.