Please note that this article is focused on Non-Tidal Waters and does not consider Foreshore and tidal rivers, which need to be considered separately.
What are riparian rights?
The term 'riparian' relates to the flow of water (natural or artificial) such as a river, lake or stream.
Riparian Rights are the rights held by the owner of the land forming the bank of a watercourse. A riparian landowner therefore is an owner of land which is adjacent to such a watercourse.
Every riparian landowner has particular rights and responsibilities in relation to such watercourses. Understanding such rights is a key consideration for both existing riparian landowners and on the acquisition of such land adjacent to a non-tidal watercourse.
Ownership and Registration at HM Land Registry
It is important to note that the Land Registry will not automatically extend a riparian landowner's registered title to include a neighbouring watercourse.
If a flow of watercourse forms a boundary across a landowner's property, the landowner is assumed to own up to the middle section of the watercourse (ad medium filum aquae). The adjacent landowner would then account for the other side.
Alternatively, a watercourse may run directly through or on a landowners' land. In this case, there is an assumption that the landowner would be a sole riparian owner for that part of the watercourse that sits within their redline boundary.
It is therefore important to note that multiple landowners along a watercourse may have distinct sections of ownership of the same watercourse, each possessing rights concerning the river's flow of water within their respective boundaries.
Given that the Land Registry will not automatically extend title to include neighbouring watercourses, it is therefore important to know the clear boundaries of a property to also determine the extent of a landowner's rights over the watercourse and the scope of their responsibilities or liabilities.
From our experience on an application to the Land Registry to register such ownership of a watercourse, the following are points to note and therefore important to consider during any acquisition or title review:
Changes to the route of a non-tidal watercourse
- If the course of a watercourse gradually changes over a period of time, the position of the legal ownership boundary will change accordingly.
- However, changes resulting from human intervention do not lead to a change in the position of the boundary.
- The boundary will continue to be along the centre line even if there is a sudden but permanent change, regardless of whether it is due to natural causes or otherwise.
- Riparian boundaries are subject to natural movement over time and once registered their position is still not fixed in law. The Land Registry may register riparian boundaries based on the existing configuration.
Example - Despite an application containing a clearly delineated, surveyed and root of title plan that indicated a straight-line title boundary, a landowner's boundary was positioned on the substantial meandering of a stream in order to register a riparian owner's land interest with the Land Registry.
It is also worth noting that the Land Registry will not automatically widen the registered title to include neighbouring watercourses, despite there being a potential common law responsibility for these placed on the landowner. Therefore, it is imperative that as part of any title due diligence appropriate searches of the index map around the boundaries are carried out and consideration is given to neighbouring watercourses.
Access
Riparian landowners are ordinarily entitled to reasonable access to the river provided their land is in daily contact with the water. This access can be used for purposes of livestock or for activities such as fishing. However, this does not equate to unlimited usage by the landowner. For example, it is unlikely a riparian owner would be able to rely on their rights to create a permanent mooring. Access rights are a complex area and from experience will need to be considered on a case by case basis, prior to any acquisition of land interests adjoining a watercourse.
Other key considerations on acquisition
The rights and responsibilities of a riparian owner established in both statute and common law are a crucial aspect in determining access and usage of the watercourse and include:
- Letting water flow naturally;
- Reporting an incident;
- Preventing pollution; and
- Preserving wildlife
On the basis that riparian responsibilities run with the land, it may be that an owner is required to undertake works to comply with their obligations such as constructing flood defences. This is a crucial part of any due diligence on acquisition as this will impact the land owners future liabilities and expenditures.
Please note that these are in-depth points to be considered in full if this is relevant to you.
