Going to Court to Prevent Others from Eroding Your Maine Oceanfront Property

By February 22, 2019 Real Estate

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You may have legitimate legal grounds to file a lawsuit to obtain a court order to prevent others from eroding your oceanfront land.

Erosion can cause the boundary of your oceanfront property to move inland, whether the erosion is caused by nature or by human activity.

Unlike with most inland boundaries, mother-nature and state law play a role in determining the location of your Maine oceanfront boundary.  As your oceanfront erodes, your boundary location may similarly “erode”. The state owns all of Maine’s coastland that is submerged below low tide. Thus, as the low tide line gradually moves inland, that part of your formerly inter-tidal land that becomes completely submerged will revert to state ownership.

Unfortunately, in Maine, you can no longer, as of right, physically protect your land from erosion by constructing seawalls on the shore, including stone abutments, concrete bulwarks, and rip-rap. Maine statutes generally prohibit the construction of new sea walls, and further, limit the time landowners have to repair their existing seawalls (see “10 Facts for Maine Waterfront Owners on Sea Rise Erosion of Boundaries, and Protective Seawalls”).

You may have legal recourse, however, to prevent others from eroding your property by their own human activity.

The Maine courts have long held that landowners, including waterfront landowners, have the right to protect their land from encroachment by human activity.  The Maine Law Court has held that it is unlawful to:

  • build a structure or undertake activities on one’s land that damages another’s land, including by erosion;
  • remove a structure buttressing an abutter’s structure that will cause the collapse or other damage to the buttressed structure; and,
  • change the landscape in a way that causes storm water to run-off and damage others’ property.

Such holdings by the Maine Law Court can provide the basis for claims by property owners harmed by the actions of others (i.e., the erosion of their boundaries).

Thus, while it is always best to try to resolve by agreement disputes over others’ erosion of your property, if this is not possible, your only remedy may be to seek relief from the courts.

You do not have to wait until the construction is complete and your property has sustained erosion damage before suing.  A credible threat of construction or removal of a structure that is likely to damage your property can be enough to file an action to request the court enjoin the planned activity.

Further, by filing a lawsuit you are able to:

  • obtain relevant documents and information from the defendants about their property and construction project;
  • seek an order from the court to maintain the status quo while the dispute is being litigated;
  • require the defendants to meet with you and a mediator, to attempt to negotiate a resolution to the dispute by agreement; and,
  • if no settlement can be reached, and you can prove that it is more likely than not that the defendants’ activities will substantively trespass or interfere with your property rights, or are already eroding your land, then the court can enjoin the defendants from continuing with their eroding activity, as well as order that they pay to restore your lost land, and pay damages.

There is an unavoidable cost in litigating claims, both financially, with attorney and expert fees, and personally, with the inherent stress of being in contention with a neighbor.  However, a lawsuit compels the offending party to pay attention to, and not ignore, your concerns and objections. A good mediator can often bring the parties to an agreement by apprising each party of the strengths and weaknesses of their respective legal claims and defenses.

In pursuing litigation, it is important to be strategic; to have proof of your claim or defense, which often requires persuasive expert opinion, supported by compelling legal authority and argument. If we can assist you in that effort, we would be happy to do so. Just contact us by phone at 207-774-2635 or email Peggy McGehee.

NOTE:  The comments above are not legal advice, and should not be relied upon to address anyone’s specific circumstances. They do not cover all legal issues about erosion or other shoreland damage. Please contact us if you seek legal representation to assert, or to defend against, a claim of erosion or other shoreland trespass.