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Private Beach -- No Trespassing!

Posted by Rona Fischman July 25, 2012 02:01 PM

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It's a day at the beach for Attorney Richard D. Vetstein. Today, he tells us what is considered trespassing on "Private Beachs" in Massachusetts.

No Massachusetts summer is complete without some good times spent on the beach, be it on Cape Cod, Ipswich, or Duxbury. But what happens when you are taking a nice stroll on the beach and hit one of those “No Trespassing — Private Beach” signs? Can you continue walking? Can you walk on the water’s edge or wet sand? What about swimming, fishing or boating? Massachusetts beach access law is rather complicated and archaic.

The Colonial Ordinances of 1641-47
Massachusetts has a unique set of laws giving coastal property owners more extensive private rights to beachfront area than other states. In most coastal states, there is unlimited public access to beachfront areas, and the public can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here, private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas has been established.

The origin of this law dates back to the Mayflower days. In order to facilitate coastal development, under the Colonial Ordinances of 1641-47, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the average or mean high water mark and the low water mark (up to 100 “rods,” or 1,650 feet, from the high water mark) to all private coastal landowners. The land—but not the water—between the two tide marks is known as “private tidelands.” This typically includes all of the wet sand area on most non-public beaches.

The general rule is that with some limited exceptions explained below, beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.

Limited Public Beach access between low and high tide area for “fishing, fowling and navigation”

The Colonial Ordinance reserved three specific and important rights of public use within private tidelands for “fishing, fowling and navigation.” Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Although there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)

Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in “fishing, fowling, or navigation.”

These antiquated Massachusetts beach access laws have created many disputes between public beach-goers and wealthy coastal property owners who have attempted to enforce a “private beach” regime. Under the Colonial Ordinance, no private property owner may deny access to someone who is fishing or hunting for birds or even surfing or launching a kayak. Indeed, knowledgeable beach-goers often carry fishing rods or line in hand, so as to claim access rights under the Colonial Ordinance.

What about swimming?
Swimming rights are a bit confusing. According to the courts, swimming in the intertidal zone is included within the reserved public right of navigation, but only so long as your feet don’t touch the bottom! And you don’t have a right to walk along the wet sand area solely for the purpose of gaining access for swimming. So basically you have the right to swim into a private beach area provided you continue to swim and don’t stand or walk into the private tidelands zone. So try not to drown…

Can I walk below the low tide line?
Yes, private property owners cannot interfere with the public’s right to walk along the submerged lands that lie seaward of the low tide line. With few exceptions, they don’t own that land; the public does. But this is tricky because the mean low tide area is seldom marked and changes historically.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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Scott Van Voorhis is a freelance writer who specializes in real estate and business issues.

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