Some Ike victims may not be allowed to rebuild

[Dover]

Source: AP

Little-known state law could put Texas beach home owners in a bind



GALVESTON, Texas - Hundreds of people whose beachfront homes were wrecked by Hurricane Ike may be barred from rebuilding under a little-noticed Texas law. And even those whose houses were spared could end up seeing them condemned by the state.

Now here's the saltwater in the wound: It could be a year before the state tells these homeowners what they may or may not do.

Worse, if these homeowners do lose their beachfront property, they may get nothing in compensation from the state.
The reason: a 1959 law known as the Texas Open Beaches Act. Under the law, the strip of beach between the average high-tide line and the average low-tide line is considered public property, and it is illegal to build anything there.

Over the years, the state has repeatedly invoked the law to seize houses in cases where a storm eroded a beach so badly that a home was suddenly sitting on public property. The aftermath of Ike could see the biggest such use of the law in Texas history....>



Read more: http://www.msnbc.msn.com/id/26780578/

[depakid]

1. Didn't make any sense to build homes there in the first place

Sort of like building homes in a flood plain. It's just asking for trouble.

[slackmaster]

9. Especially in light of what happened at that exact spot in 1900

[TexasProgresive]

2. I've never had a home on the coast-

but I've known about this law for ever. It was designed to prevent blocking public access to the beach and the water- and I support it. No one should build an elaborate and expensive house on the beach and no one should insure such a folly.

[Lance_Boyle]

3. Wow. Texas begins to eat the rich. Shocking.

I can't believe they were ever able to get those water-taunting houses insured in the first place.

[bdamomma]

4. another open wound in the US.

sad very sad.

[L0oniX]

5. We have the same thing here in Florida. If you have a home on a barrier island...

and it gets knocked down by a hurricane in Pinellas county, you can not rebuild and the state takes the land for public property. I have no problem with that because mostly rich people live out there in their million dollar homes and condos. You can't even get home insurance on the the barrier islands in Pinellas county.

[Javaman]

6. Okay, is that the ORIGINAL owners won't be allowed to build? or anyone?

with the whole emanate domain thing still out there, I suspect in about a year or so, many a multi story condo will be springing up.

[happyslug]

20. This is English Common law on Property, Texas just Codified it, most states have not.

Basically the Rule is simple, the state can sell you the right to own property from the high water mark onward, anything else the state can not and has never sold. The state takes the legal position that the property, if it is now between the low and high tide marks, no longer exists. The same rule applies in most states to stream and creeks, those are public highways that the state NEVER sold to the adjacent property owners. Thus even if you own both sides of a stream, River or Creek you do NOT have exclusive use of such stream, river or Creek unless the water flow starts on your property. i.e. if the spring the stream starts in, is on your neighbor's property the stream is a public road right through your property. It is a private road on the property the spring is in, but a public road as soon as it crosses on to your property.

More on this concept and the fact it is English Common Law derived:
http://www.texasep.org/html/lnd/lnd_7bch_access.html
http://www.texasopenbeaches.org/open.htm
http://www.surfrider.org/texas/issues/suit/

A 1974 Supreme Court advisory opinion to the Legislature of Massachusetts about the high and low tide marks. Massachusetts since the 1640s had a policy that people's property rights ends at the low tide mark instead of the Common law Rule of the High Tide Mark (this was based on a Colonial Statute saying that ownership of land extended to the low tide mark, but subject to the rights of "fishing, fowling and navigation"). This is the law in Massachusetts to this day (and Maine which came under the same Stature for Maine was Part of Massachusetts prior to 1820). Thus in Maine and Massachusetts people own land to the low water mark subject to the the right of the Public to "fishing, fowling and navigation".

Most states follow the Common law rule, as does Texas, but I point out the Massachusetts rule which is directly opposite of the Common law rule. This is acknowledged even by Massachusetts which says the difference is a product of Statute NOT the Common Law:
http://www.lawlib.state.ma.us/beach.html

The actual Opinion I cite:
http://masscases.com/cases/sjc/365/365mass681.html

California follows the Common Law Rule:
http://www.beachlaw.info/?p=256
http://www.surfrider.org/stateofthebeach2003/3-meth/access.asp
http://beachlaw.info/links.php

Oregon follows the Common Law Beach Law:
http://www.orgov.org/beachbill.html

Florida also follow the Common law rule that private property ends at the High Tide Mark, but excludes area of sand that never gets wet (Oregon and most other states include such high sand areas as part of the beach, Florida does NOT seem to do so):
http://www.law.fsu.edu/journals/landuse/Vol151/spain1.htm

Washington Beach law, varies from area to area, the Territory of Washington sold land only up to the high Tide mark, but since Washington became a State, the state has sold lands down to the low tide mark, i.e. ownership varies dependent on the deed:
http://www.surfrider.org/qa_access.aspx?stsel=WA
http://www.funbeach.com/attractions/beach_driving.html

The rest of the state I can not find any rule on a quick search, thus all I can say is most states follow the Common Law rule i.e. property rights end at the high tide mark, but many states have different rules as shown by the Example of Maine, Massachusetts and Washington.

[glinda]

7. There are a lot of empty houses

I think that some of them should get small incentives to move out of the area and to re-locate to empty foreclosed houses across the Country. I am sure this is a bad idea since I don't have a financial clue but seems to me with all the bad properties, everyone would kin of benefit provided there is some sort of income attained or something.

[slackmaster]

8. South Carolina has a similar law

It's good code for the environment, very bad for people who get hit by it.

[semillama]

10. It is bad for the folks who lived there

but it is tempered by the realization that anyone who could afford to live on the beach probably has a choice in where they live in the first place. It's not like kicking people out of the Lower 9th Ward (which still makes sense environmentally, but has a much greater impact on the people who lived there).

[DS1]

11. Oh well

[piedmont]

12. GOOD! Barrier islands and spits are made of actively shifting SAND!

It's insane to allow anyone to build there and then inevitably have to bail them out when that sand moves out from under them.

[Ian David]

15. It might make a nice place to anchor houseboats. n/t

[piedmont]

18. Everything built on them turns into a houseboat anyway.

Maybe they should be built to be sea-worthy.

[JonQ]

13. They knew

or should have known the risks when building there.

I don't have a whole lot of sympathy for people who build in very unstable areas because they like the view, who are then absolutely dumbfounded when it turns out nature may have other ideas.

Same for those who build on active faults, near places prone to mudslides, tornadoes, flooding etc. If this were a once in century type of event I'd have more sympathy. But it happens multiple times every year. You can't act too surprised.

[Ian David]

16. Everywhere in the country is "prone" to something.

Every winter in New England more people die from winter-related causes than in the last couple big California earthquakes combined.

Should we all become refugees after the first frost?

But I agree, there really HAVE to be limits at some point.

[JonQ]

17. It's true that disasters can happen everywhere

but the likelihood isn't equally distributed. God does discriminate. A house would be a lot safer in Dallas than Galveston for instance.

And snow doesn't tend to demolish homes the same way a major earthquake or hurricane will.

There's a reason why a home owner, for the same priced house, may end up paying much higher insurances premiums depending on where they live.

[Ian David]

14. They should call it "The Texas Futile Building Law"...

After George Bush's "Texas Futile Care Law."

[Neshanic]

19. Wow, Texas has a sensible law, who woulda thunk?

[happyslug]

21. This is the Common Law, the rule in most states but see my note above

i.e. # 20