Contracting for Access

Landowners and waterfront users can enter into private agreements that define the terms of use of private waterfront lands.
Private agreements provide a means to enforce promises between two or more parties, typically formalized in a written contract. These agreements do not transfer ownership of the land. In most private agreements the landowner continues to have all of the same property rights that were present before the agreement was made. (See Acquiring Access for information on how to transfer ownership interests.)
A landowner may informally agree (verbally or in a non-binding statement) to allow certain people the privilege of gaining access to the shore across his or her property. In order for a private agreement to be legally enforceable, it must convey a benefit to each party (the owner and the user) otherwise it lacks "consideration," and can be easily revoked.
These agreements are inexpensive to create and do not bind the landowner or subsequent purchasers of the land, but they are risky for those acquiring access through informal agreement, as the access privilege could be revoked at any time.
Landowners and beach users can also enter into more formal and binding agreements in which the landowner specifies how the land is to be used and to create conditions that, if not met, would allow access rights to be revoked. They can be useful to avoid the higher burden of access rights compelled by the government.

Overview

Contract Enforcement

Benefits and Risks

When to Use Contracts

Contracts Types

What are the types of provate agreements? When is each type best used?

Case Studies

See successful examples of contracts used to provide access.

How can agreements be made legally enforceable?

For a contract to be legally enforceable, it needs to include benefits for both parties.  The scope of this tool is limited mostly by the imagination of the parties involved. As long as the parties are negotiating on equal footing, and as long as each party is dedicating a benefit to the other, almost any type of private agreement can be entered and enforced. It is important to note that a private agreement that only gives a benefit to one party (such as a landowner promising to provide access rights with nothing in return) may not be an enforceable agreement. It could lack "consideration, a necessary element for a valid agreement. For this reason, once the parties have come to an agreement, it is important that a lawyer be consulted to draft the agreement in a manner that will be enforceable in court.

What happens if one of the parties breaches the agreement?

If the landowner breaches the agreement, the other party may need to be compensated, but it’s unlikely that access will be enforced.  Private agreements differ from conveyance/acquisition in that the landowner is agreeing to permit a use of her land, but is not actually transferring the property interest in that land. For this reason, if the landowner breaches the contract she becomes liable to the other party only for the value of the allowed use she subsequently refused to permit. She may need to compensate the other party by monetary means, but the court will not likely force the landowner to grant the other party the promised access. This is particularly true if the other party could acquire similar access elsewhere. An exception might exist if the access point is unique to the area. The specifics of the agreement will determine the likelihood that monetary compensation (as opposed to continued performance) will be required in the case of a breach of the contract. This is another reason to consult an attorney over the specifics of any agreement.

The agreement must be written to address the consequences if a user breaches it.  If a user breaches the agreement, the legal consequences must be defined in the agreement itself and are completely left to the discretion of the parties involved. Commonly under these circumstances, monetary damages would be paid to the landowner.

How can landowners reduce risk when providing access?

For least risk to the landowner, a non-legally enforceable contract can be used. This tool also can be used in a non-legally enforceable manner. If a landowner gives permission for his land to be used for public access but does not receive anything in return, that agreement will not be enforceable if the landowner changes his mind. While not legally enforceable, such an arrangement provides public access with minimum risk to the landowner. The landowner would have the ability to unilaterally revoke the access for any reason. This type of arrangement relies solely on the good will of the landowner, and provides a strong incentive for the other party in the agreement to maintain good will, for example the other party might set up a means to ensure stewardship of the access point. The landowner likely would not incur increased risk of liability from such an arrangement because Maine statute provides for limited liability for landowners allowing recreational use (see Maine Landowner Liability Law). Landowners have a strong incentive to offer access in this manner because they remain in ultimate control of the arrangement. Further, by alleviating some of the demand for access, the landowner helps reduce the likelihood that the tool of eminent domain will be used to force a non-voluntary conveyance of some permanent interest.This type of non-binding agreement might be used as a first step to test whether certain conditions of use will be satisfactory to a landowner. The parties could then enter into a binding agreement for a period of time, or use the tool of a formal conveyance/acquisition of a property interest.

Why would coastal property owners benefit from the use of a private agreement?

Private agreements offer landowners continued flexibility and control of uses on their property. Private agreements are ideal for landowners who are willing to consider certain types of coastal uses on their properties, but are not willing to a transfer ownership, at least initially. In this same way, contracts allow landowners to test their comfort with particular uses before entering into a more binding long-term agreement such as an easement. Landowners may have a strong incentive to enter into such agreements because they could forestall the need for more severe regulatory or non-voluntary acquisition approaches. Incentives such as use fees and property maintenance also may be negotiated with users to the benefit of the landowner. The ability of a landowner to change his mind is more present in private agreements than in a transfer of a property interest.

Why would potential users benefit from the use of a private agreement?

Private agreements may offer users the only possibility of access to some sites..  Because private contracts impose minimum risk on the landowner, owners may be more inclined to try this tool than others that are more binding. Therefore, the use of private agreements may provide users with access locations and uses, even if temporarily, that might otherwise have been impossible.

When are private agreements best used?

Private agreements can be more flexible and cost effective that an outright conveyance, or acquisition, of land. They are best used when:

The landowner does not want to transfer all or part of the land long-term;
The landowner wants to allow access but control how or when it takes place and be in a position to revoke that privilege;
The landowner wishes to dissuade a government entity from enforcing a more permanent and/or less favorable access obligation on the landowner.

When are private agreements not the best tool for access?

Other tools are best used when permanent access is desired. Private agreements are not ideal when landowners wish to convey or others wish to acquire permanent, predictable and/or long-term rights of access that bind future landowners as well as the existing one.

What are the types of private agreements? When is each type best used?

Private agreement: permits certain uses to identified users, in exchange for some benefit to the land owner. Private agreements differ from conveyance/acquisition in that the landowner is agreeing to permit a use of her land, but is not actually transferring the property interest in that land. Private agreement is a general term used here to encompass a category of specific tools described below.

To be effective, any type of private agreement should be drafted to address the following:

Right of renewal: for private agreement to be used for more than just a short term solution, the agreement should include a description of each party’s right of renewal, such as in a contract that provided access for a specific period of time. The right to renew the agreement could be conditioned on one party performing specific obligations such as adequate policing or maintenance of the property.
Specific use restrictions: agreements can limit public use to specific user groups, such as clammers, recreational boaters, etc.

There are two general types of private agreements:

Lease: best used when a defined time period is desired for the agreement. A lease is a written agreement, in which the owner of property (either real estate or some object like a boat) allows use of the property for a specified period of time (term) for specific periodic payments (rent), and other terms and conditions.
Contract: most enforceable when both parties receive a benefit. A contract is an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration (a legal concept that requires both parties to give up something in exchange for receiving something). For a contract to be legally enforceable, it needs to include benefits for both parties. For example, if a landowner gives permission for his or her land to be used for public access but does not receive anything in return, that agreement will not be enforceable if the landowner changes his or her mind.

If desired, a contract can be drafted as:

Installment contract: best used when the landowner wishes to receive her benefit over a period of time. An installment contract is an agreement in which payments of money, delivery of goods, or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings.
Lease-option contract: best used when the lessee wishes to purchase the property, but cannot do so at the time of the agreement. The lease-option contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.

Case Studies:

See successful examples of contracts used to provide access.