• Who Owns the Beach?
  • July 4, 2012 | Author: Douglass C. "Doug" Lawrence
  • Law Firm: Day Pitney LLP - Boston Office
  • So you have the perfect Massachusetts summer vacation planned. You have rented a seaside cottage and purchased all the necessary beach supplies. But before you load up the car with towels, beach chairs, umbrellas and coolers, stop and think about whether the beach you intend to visit is privately owned, how you are going to gain access, even if it isn't private, and where you are going to sit once you get there.

    To fully understand whether a beach is public, a responsible Bay Stater would need to familiarize herself with such legal terms as "tideland" and "intertidal area," Public Trust Doctrine (on which ample authority exists because it dates back to Roman law) and the ever-exciting Colonial Ordinances of 1641-1647. For those readers seeking a scholarly article on such topics, STOP READING NOW. The summer is, after all, a time to have fun. But finding a beach in Massachusetts at which to do so might be harder than you thought.

    Massachusetts is one of a handful of states that still allow virtually complete private ownership of the beach. And the people who own beach land are well aware of these property rights. A quick Google search of "Jim Belushi," "beach" and "trespass" underscores this conclusion. So when you stumble across a gorgeous stretch of Massachusetts beach and wonder why it's deserted, understand that using the beach might constitute trespassing on private property.

    That said, the rights of landowners are not absolute when it comes to the beach. They have to share with the public, in narrowly defined circumstances, the area of the beach between the high-tide and low-tide marks. This area is often easy to spot because it is filled with seaweed, dead jellyfish and razor-sharp broken shells. Our courts call this space the "intertidal area."

    In Massachusetts, landowners still own the intertidal area, but they must allow others access in three circumstances: fishing, fowling and navigation. As interpreted by our courts, you can access the intertidal areas--be sure to watch where you step--to fish, look for shellfish and hunt birds. And although you are free to "navigate" boats and watercraft in the intertidal zone (presumably at high tide), be sure to find deeper water before low tide.

    One very large exception to these rules exists, however. Under the Public Trust Doctrine, the landowners do not actually own the seawater itself, even the water found in the intertidal zone. You can swim--or do whatever else you want--in this water, so long as you don't inadvertently touch the seafloor in the intertidal zone. Nor can you enter or exit the water via the beach or intertidal zones. Such contacts would, of course, constitute impermissible trespasses.

    Despite these rules, Massachusetts offers numerous public-access beaches where you may find a tiny patch of sand to enjoy among the sun-worshiping masses.

    Or you could just go to the beach in Rhode Island.