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Private Waterfront Landowner

How do I control public access?

As a waterfront landowner, what are my legal rights and responsibilities to control public use of my property? What is the scope of my ownership and what are its limitations?

What are the benefits to allowing access to my waterfront land?

  • Good will
  • Income potential when land trusts or public entities purchase easements

How do I ensure access?

What tools are available to secure and enhance waterfront access or to protect my rights when I provide access?

If someone gets injured while using my land, can I be held liable?

New Jersey’s Landowner Liability Act (N.J.S.A. 2A:42A-2 et seq.) increases landowner protection, should someone become injured while using their land for public access purposes. Overall, the Act is created to provide special immunities that encourage landowners to make their properties available for recreational activities for the benefit and enjoyment of others.

The purpose of the Act is to encourage landowners to make their properties available for sport or recreational activities by limiting the liability they would otherwise face under the common law. The legislature defines sport and recreational activity to include outdoor sports, games and recreational activities.

The Act provides that the owner of premises owes no duty to keep the premises safe for entry or use by others for sport and recreational activity, or to warn persons entering for such purposes of hazardous conditions of the land.  These limitations on liability apply to public and private entities equally.

It is important to note that the Act is not without limitations; specifically the Act does not limit liability in the following situations: (1) willful or malicious failure to guard or warn against a dangerous condition or activity; (2) injury suffered where permission to engage in recreational activities was granted for a consideration (payment in some form); (3) injury caused by someone engaged in recreational activity to someone who is on the property for the landowners personal affairs.

Who holds access rights?

New Jersey implements the Public Trust Doctrine and holds all lands extending seaward of the mean high water line in trust by the state on behalf of the public. In addition, New Jersey courts have ruled that dry sand areas above the mean high water line are subject to limited public access rights under some circumstances in order to allow use of the public trust lands for recreational uses such as swimming, sunbathing, fishing, boating and walking.

What is traditional land ownership?

Traditional land ownership includes ownership of the full title, the right to eject (keep out trespassers) and the right to transfer (sell or give the land way). Ownership need not be absolute; it can be split, such as by an easements or a right of way.

What is property owned in trust?

Property owned in trust consists of the property itself, the trustee or holder of the property (who will often be the manager of the property), and the beneficiary of the trust, or the person or organization who receives any benefits from the property. Land trusts – though often set up as private charitable organizations rather than actual trusts – assist landowners in conserving their land. Land trusts can act as trustees or whole owners of property.

What is a public trust?

A public trust consists of the same three parts as a regular trust: the trust property (or the public’s right to that property), the trustee (the state), and the beneficiary of the trust (the public). The public trust doctrine is a legal concept that applies a public trust ownership to lands that have traditionally been public, such as submerged tidal lands. Because the state owns such land in trust, it cannot convey the land to private owners in most circumstances.

Case Studies

See examples of cases pertaining to landowner liability

Where can I find more information?

New Jersey Landowner Liability Act (N.J.S.A. 2A:42A-2 et seq.)

New Jersey Department of Environmental Protection: Division of Land Use Regulation

Tidelands literature including applications, forms and information (NJDEP Division of Land Use Regulation)