In reviewing the title to any parcel of property, the title examiner or attorney is primarily interested in four issues:
• Who is the vested owner;
• What property do they own, i.e., what are the boundaries;
• How is their ownership defined, what rights and benefits do they enjoy;
• What burdens or encumbrances have been placed upon the land.
In examining property that borders on a body of water or contains wetlands, the answers to these questions become more difficult because of the ever-changing nature of shore lands and wetlands. The difficulty is then compounded by the complex and varied laws that affect these properties. Wetlands are defined under the Clean Water Act and various other federal and state statutes. The EPA, Army Corps of Engineers, state natural resources department, state environmental departments, and the U.S. Coast Guard, may have regulatory authority over these properties, not to mention various other local or state agencies that may have been established to regulate development along waterfront properties.
The single most difficult task faced by a title insurer is to determine the legal character of wetland property. Its legal character may be very different than its physical appearance. Wetlands include tidelands, submerged lands, swamp and overflow lands, inland lakes and rivers, marshes, bogs, and uplands which border a body of water. Wetlands, for conveyancing purposes, may also be treated as dry land or upland property. Wetlands may be defined by legislation or regulations as land which is normally dry but has a high water table or supports a certain type of vegetation. Because of these uncertainties, local underwriting counsel must be consulted.