In the December 2020 issue of Point of Beginning magazine, a column by land surveyor Kristopher M. Kline, PLS, discussed recent developments relating to the law of waters; Dockominiums ranking as some of the strangest.1 The term itself is somewhat flexible, with several courts referring to these legal constructs as “so-called Dockominiums.” Others have recognized that the term can refer to different property rights with continuous occupancy and apparent control of a marina, dock, jetty or boat slip as the common denominator.
Most Dockominium sales depend on the conveyance of the rights to the water rather than sale of the dock itself, as the dock is merely the physical means to reach the individual marina, dock, jetty or boat slip space. Inconsistent outcomes over similar disputes in different areas of the world are prevalent as each local and national jurisdiction has a certain level of discretion to determine how riparian and tidal disputes are resolved. Condominium law in some countries expressly allows sales of spaces “filled with air or water.”2
Riparian Rights and Navigable Tidal River (Estuary)
In common law jurisdictions, in the absence of any modification by statute, the conveyance of the upland estate does not pass the tidelands (land underwater).
Also, there is a significant change in ownership as well as personal and public rights at the mouth of the river — the mouth of a tidal river is called an estuary. The location of the estuary is a question of fact and not a question of law.
In a conveyance call to the bank of a river, it does not convey down to the high-water line. This conveyance does not convey any riparian rights.
If the conveyance is clear and unambiguous that there was an intention to convey to a boundary line capable of location by survey method, that line and not the water boundary (with its associated rights and privileges) becomes the property boundary and the limits of the property rights. Thus, a new landowner cannot build a jetty from his land without becoming a trespasser.
Note: In Trinidad and Tobago, tidal waters, navigable or non-navigable, the state owns up to the high-water mark.
There are two significant differences between tidal and non-tidal water pertaining to:
- ownership of the bed of the river;
- and ownership of the fishery.
The Ownership of The Bed of Tidal Rivers Is Prima Facie in the State.
Above the influence of the estuary, the non-tidal area is privately owned, provided that the owner of the upland is the owner of the riparian grant and the upland is not separated by a river reserve.
This is contrast to non-tidal rivers where the fishery (not the fish) is privately owned by virtue of the upland owner as a riparian owner, and the fishery is a profit attached to the bed of the river.
The right of fishery is an incorporeal hereditament in the nature of a profit, which can be separated from the bed either by deed or prescription.
Development Control and Land Use
Kline’s article on Dockominiums highlighted certain land development issues and wondered about the legitimacy of some of these activities. For example:
- The developer sells private rights to a mailbox or lockbox located in the common area of the land portion of the Dockominium project, which then—in theory—includes appurtenant private rights to the dock or slip(way).
- The result is a grant of title to a land-based airspace of less than one cubic foot that in turn lends apparent legitimacy to the incidental rights normally associated with riparian and littoral tracts.
- One unusual aspect of these sales is that the incidental rights are the primary value of the conveyance, and the lockbox is a mere pretext. In many cases, advertising highlights the value of the boat slip and completely ignores the lockbox.
- Seldom is the ‘mailbox’ portion of the common area directly adjacent to the water.
- Sale of small upland tracts may be problematic where those parcels are not contiguous with the water because parcels with no littoral/riparian boundary theoretically would not benefit from incidental riparian rights.
All jurisdictions have some form of statute, regulations and guidelines that control waterfront land development, which includes environmental issues. Docking is a nearshore consideration limited by the line of navigation. There are two dominant interest concerning waterfront owners, namely:
- Right of ingress to navigation waters — the right to build a dock out to deep-water.
- Right to view out of the edge of the main navigation channel.
So the activities above, to be legal, will have to be in harmony with the laws and regulations.
Ownership & The ‘Bundle Of Rights’
The modern legal understanding of property ownership is expressed through a metaphor as a “bundle of rights” or a “bundle of sticks.” This is an abstract notion that analytically describes property as a collection of rights.
The bundle of rights metaphor was intended to signify property as a set of legal relationships among people and is not merely ownership of “things” or the relationships between owners and things.
The main thesis being that, in English law, ownership is more fundamentally divisible, hence, amenable to the demands of modern society, whereas legal systems based upon civil law (Roman) do not easily accommodate “the fragmentation of rights of title, use and enjoyment which is integral to economic reality of property in the complex world we live in.”
In those circumstances, the concept of a “bundle of rights” incidents of ownership demonstrate the concept of property rights as “different sorts of rights and rights-correlatives” that may combine in many different ways to explain ownership.
In the developed western countries, the economies changed from a plantation-based economy to industrial and information enterprises. Property law, therefore, could not remain stuck in laws with regulations and practices that inhibit modernism or inadequate to new forms of property.
For instance, in the 1970s, Trinidad and Tobago experienced an oil boom and overheated economic activities in heavy and light industries as well as in land development. The development of high-end seafront condominiums with docking and berthing facilities has taken place. The highwater line is the common boundary between the upland private parcel and the State. All lands reclaimed from the sea are under the state, and its use is controlled by the state. This is a littoral boundary issue, and it is not as complex as riparian properties and riparian rights.
The bundle of rights concept, therefore, addresses modern social, economic and political social order. It is a pragmatic concept, infinitely flexible and adaptable and is also unhindered by narrow thesis. The Dockominium has made use of this concept. However, this could, and will, evolve based on its impact on environment and social issues.
Incidental Rights v. Ownership
As noted above, riparian rights can be severed from ownership, the upland from the riverbed and even more significantly, from the riverbank itself. However, there are times where the conventional riparian rights have been impaired by statute in favour of perceived public good and subject to state regulations.
However, based on the modern legal understanding of property ownership expressed through the “bundle of rights,” developers can sell private rights to a mailbox or lockbox located in the common area of the land, that is, a portion of the Dockominium estate, which includes appurtenant private rights to the marina, dock, jetty or boat slip.
It should be noted that these rights are not a subdivision where a portion of a parcel of land is excised from a parent parcel – these are rights in the form of leases, rents, profit à prendre, easements, licences, etc., which are incorporeal hereditament.
At the end of the day, land development is controlled by the state through its Planning and Environmental Agency that enforces the laws that concern land development, land use and environmental issues.
Land Surveyors and Dockominiums
Land surveyors who are hired to survey for proposed Dockominium projects must be provided with planning and environment approvals. Where a Dockominium is sliced-up into a series of rights, these rights must be unambiguously described so that the limits of the rights can be defined by a survey method — this is not a subdivision that creates new parcel or parcels. At all times, the land surveyor must be guided by the appropriate laws.
MODEL LEGISLATION FOR DOCKOMINIUM REGISTRATION3
Register of DOCKOMINIUM plans
The Registrar shall keep a register of DOCKOMINIUM marina, dock, jetty or boat slip plans and shall record therein particulars of all DOCKOMINIUM plans lodged in the Registry.
Requirements of DOCKOMINIUM plans
Every DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan lodged with the Registrar for registration shall comply with the following requirements—
- it shall be prepared on the appropriate forms prescribed in the Schedule and issued by the Registrar unless the Registrar permits otherwise;
it should comprise:
- a first sheet in the form prescribed as Form 1, (using annexes thereto where necessary) on which shall be set out the matters prescribed by sections X(X)(x), (x) and x) of the Act,
- a further sheet in the form prescribed as Form 2, (using annexes thereto where necessary) on which shall be set out the matters prescribed by sections X(X)(x) and (x) of the Act, and
- further sheets in the form prescribed as Form 3, (using annexes thereto where necessary) on which shall be set out the matters prescribed by section X(X)(x) of the Act;
- each further sheet of a DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan shall be endorsed in the top right hand corner:
“Sheet (No.) ………………of (total No.) sheets”;
- the drawings required by section 7 of the Act shall be drawn with the north point upwards and parallel to the sides of the Form. It shall be drawn to a natural scale that will admit of all details and notations being clearly shown and such drawing shall show offsets in any case where part of the MARINA, DOCK, JETTY OR SLIP is within 6 feet of a boundary of a parcel but no other dimensions shall be necessary. The external surface boundaries of the parcel shown in any such drawing shall, if the Registrar so requires, be defined by a precise survey No. on a survey to be carried out under the provisions of the Land Surveyors Act;
- MARINA, DOCK, JETTY OR SLIP plans and elevations prepared for the purpose of section X(X)(x) of the Act shall be drawn with the north point upwards and parallel to the sides of the Form and shall be of a size that will admit of all details and notations being clearly shown;
- the DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP shall be numbered consecutively, commencing with DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP 1 and terminating with a DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP numbered to correspond to the total number of DOCKOMINIUM MARINAS, DOCKS, JETTIES OR SLIPS comprised in the DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan. Different parts of a MARINA, DOCK, JETTY OR SLIP that constitute a single DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP shall bear the same DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP number;
- printing, writing or drawing shall be clear and legible in black waterproof ink and shall not extend into any margin;
- alterations shall be made by striking through the matter intended to be rejected and not by rubbing, scraping, covering or cutting the surface of the paper.
Applications to indicate name, etc. of proprietor
Every application for registration of a DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan shall indicate the name and postal address of the registered proprietor and of the party by whom the plan is lodged and shall be produced by hand to the Registrar accompanied by the prescribed fee and by the land certificate, if issued.
Mode of effecting registration
Registration of a DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan shall be effected by notifying under the seal of the Registrar on the first sheet thereof the fact and date of such registration.
Powers of Registrar to renumber DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP and correct errors, etc.
The Registrar, after such enquiry and notices, if any, as he/she may consider proper and upon the production of such evidence and the compliance with such requests, if any, as he/she may think necessary to require or make may—
(a) number or re-number any DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP in a registered DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan;
(b) supply omissions and correct patent errors in a registered DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan; and
(c) amend a registered DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan in such other manner as he may think proper.
Endorsement of interest affecting the DOCKOMINIUM plan
The Registrar shall endorse a land certificate issued for a DOCKOMINIUM in a DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan with a notification that by virtue of the provisions of the Act, the proprietor holds his/her DOCKOMINIUM and his/her share in the common property subject to any interests affecting the same for the time being notified on the registered DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan and subject to any amendments to a DOCKOMINIUM or common property shown on the plan.
Form of certificate for surveyors, etc.
The certificates given pursuant to section X(X)(x) of the Act shall be in or to the effect of Form 4 for the certificate of the licensed surveyor and Form 5 for the certificate of the Director of Physical Planning and, if endorsed on the DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan, shall be endorsed in the appropriate places shown on Form 2.
|(a)||recording a Declaration under section X(x) of the Act||$250.00|
|(b)||recording an amendment of a Declaration under section X(x) of the Act||$50.00|
|(c)||lodging certificate under section XX(x) of the Act for record at the Registry||$15.00|
|(d)||lodging for record the name and place of residence or business of a person nominated to receive service of summons, notices or other processes under section XX(x)(x) of the Act||$15.00|
|(e)||on lodgment for registration of DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan||$20.00|
|(f)||for opening new registers consequent upon registration of DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan for each MARINA, DOCK, JETTY OR SLIP||$10.00|
|(g)||on lodgment of a notification of destruction of the MARINA, DOCK, JETTY OR SLIP||$20.00|
|(h)||on lodgment of a notification of any amendment or variation of any by-law||$20.00|
|(i)||on lodgment of any application for amendment of a registered DOCKOMINIUM MARINA, DOCK, JETTY OR SLIP plan— per amendment||$20.00|
|(j)||on application for Land Certificate of Lease||$20.00|
|(k)||on lodgment of an application for any instrument to be prepared in the Registry which in the opinion of the Registrar requires substantial addition to or variation from the prescribed Such fee not exceeding $50 as the Registrar may assess|
Dockominium registration fees are often overlooked as a source of revenue required to fund services for Caribbean island citizens, enhanced economic development and dockominium management. The dockominium registration fees may be a source of untapped Internally Generated Revenue (IRG) available to local and national governments in the Caribbean to fund services provided to the local population, tourists and local and visiting boat owners.