Bulletin: NJ2012001

Dear Associates:

We have recently seen an increase in claims arising from the failure to take exception for riparian lands that have not been granted by the State of New Jersey. The resolution of these matters can be quite costly, both for the costs of the grant and for legal fees. However, generally speaking, these claims are avoidable. This Bulletin is intended to serve as a reminder of Stewart's requirements regarding Riparian (Tideland) searches.

The State of New Jersey holds fee simple title to all lands now or formerly flowed by tidal waters. Beyond the more obvious interest in lands adjacent to the ocean, bays or tidally flowed rivers, this interest may include lands that have been filled, as well as dormant streams and creek beds that have been dry for years. There may be property that is "claimed" by the State of New Jersey that is well inland or not part of a "shore" area.

Maps exist that delineate the lands in which the State of New Jersey asserts an interest. These maps should be reviewed in order to ascertain if the property is affected by a tideland claim. These maps are maintained in both the counties as well as in Trenton in the Office of the DEP. The maps include a base map, claim overlay and a grant overlay. There are professional companies that will review the maps and provide a determination as to whether a parcel is claimed or not. Signature Information www.signatureinfo.com as well as Western Technologies www.wtgroupllc.com are two such providers. 

The general rule is that a tideland search should be ordered with respect to every file written on Stewart in New Jersey unless the property lies within one of the four counties that do not have any tideland claims (Morris, Sussex, Warren and Hunterdon counties) or if based upon a review of the claim maps you are certain that the property being insured does not fall within a claimed area. A copy of the tidelands key map is attached. A tideland search should be ordered if your property falls within or anywhere near a red "box." Many agents seek to superimpose their property location on the attached Tidelands Key Map and pass without ordering a search if they find that the property is nowhere near an area now or formally flowed by the tide. The key here is to make sure that properties with tidelands claims are identified and appropriate exceptions taken. Bear in mind that even when relying on back title, an analysis of tidelands must still be done. Issuing offices that insure a property containing a tidelands area, without appropriate exception, would be at fault should the Company suffer a loss. 

If your search comes back "unclaimed," there are no further exceptions to be set up. If your property is "claimed," a grant search should be ordered to determine if the State has released its claim. If there is a riparian grant or a lease issued by the State, it needs to be examined to determine if the claimed area is covered by the grant or lease. In the event that there is no grant or lease, or if the grant or lease does not cover the entire claimed area, an exception for the rights of the State of New Jersey should be added to Schedule BII. Additionally, if the property is adjacent to a body of water, an exception should be set up omitting coverage for so much of the land as lies below that body of water. 

Sample exceptions are attached to this bulletin. If there is a grant that covers the entire claim area, the only exception to be set up would be for the terms and conditions of the grant. It should be noted that the grantee in the grant must be the owner of the upland at the time the grant is issued. 

If the property being insured lies adjacent to a navigable body of water, the United States has authority to control bulkhead and pierhead lines and may take adjacent land in order to maintain navigation. Accordingly, exceptions should be set up for the rights of the Federal Government. Sample language is attached. 

Finally, if the property abuts a beach, an exception should be set up for rights of the public to gain access to the beach for recreation. These rights stem from New Jersey Supreme Court decisions upholding the public's rights to beach access. Sample exception language is attached to this bulletin.
 
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