My home has its own dock and jetty, but despite a good look I cannot find any mention of it in the deeds relating to my house. Is it legal to have a dock or jetty without some kind of title documentation?The issue of docks and jetties and their ownership is a tough and complex one that has property owners and professionals scratching their heads as Government has recently moved the goal posts on this one.

Firstly you have to find out if you do have documentation. This documentation will usually be in the deeds of the property in the form of a conveyance from Government to the property owner of the relevant area of seabed, or alternatively by way of a lease. If your property deeds do not contain evidence of a conveyance or lease from Government of the seabed in question, then it will be considered an illegal foreshore encroachment, and you will need to approach Government to regularise it.

And this is where the problems start. Under current law all land below the mean high tide watermark belongs to the Crown. As such it is administered and managed through the Government of the day as the representatives of Her Majesty the Queen in Bermuda. This means that all structures erected on, or over, the seabed, which is referred to as ?the Queen?s Bottom?, should have been placed there with the consent of the Government.

In the past some property owners were granted a ?Foreshore Licence?. This statute has since been repealed, and it should be borne in mind that in general a licence is personal to an individual and does not usually constitute an interest in real estate. In other words it is not generally transferable with the property.

The Sale of Reclaimed Lands Act 1951 regulates the sale of the Queen?s Bottom, and it is not widely appreciated by property owners or their advisers that this statute gives Government an entirely ?discretionary? power to sell the Queen?s Bottom. This means it is not obliged to sell, but may sell if it so chooses.

Until recently this had never posed a problem for property owners as the Government of the day had historically sold areas of the Queen?s Bottom to waterfront property owners when requested to do so. However, it appears that recently Government has decided as a matter of general policy that it should no longer continue to sell the Queen?s Bottom pursuant to the Act, and should instead only offer 21-year premium leases.

Needless to say that decision has caused some consternation for property owners, and their attorneys. Partly because property owners are no longer afforded the opportunity to purchase their piece of the Queen?s Bottom, as had been the case historically and partly as a result of the high lease premiums being quoted by Government.

So, be warned; if you own, or are considering buying a waterfront property that has an existing dock or jetty attached to it, or if you are contemplating adding one to your property, and it isn?t in your deeds it probably isn?t regulated and is probably therefore illegal.

To make it legal and get it in your deeds you will have to approach Government to negotiate a lease of the Queen?s Bottom in question. However, be warned this can prove to be an expensive venture. With the high level of lease premium being sought by Government (70 percent of the fair market price) property owners would be well advised to take professional valuation advice, as well as legal advice, when conducting negotiating with Government. Who?s to say Government?s opinion of fair market price is right? Who?s to say the lease premium should be 70 percent? Like all negotiations of this nature you should never accept the first figure quoted to you.

For the fortunate few who own an unregulated dock or jetty, and can prove by way of old plans, photos, or a sworn affidavit from somebody who can testify that the dock or jetty has been on the property for over 60 years, then your worries should be short lived. Your attorney should be able to prove adverse possession to the satisfaction of Government, and in such cases no consideration or premium is due.

Finally, marinas are considered an entirely different animal to docks and jetties located at the bottom of one?s garden. Therefore, owners of existing or proposed marinas, where the Queen?s Bottom has not yet been acquired or leased from Government, should be aware that the calculation of the fair market price is undertaken in an entirely different manner than that set out above, but that?s another story for another day.

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