'Private beach' real estate ads anger shoreline activists. Can RI bills 'educate' buyers?

They appear as reliably as the red tide: Real estate listings for tiny summer cottages and ostentatious mansions along Rhode Island's shoreline, promising the fantasy of a private beach.

"An enclosed shower is right off the side door along with a rinsing station for cleaning the sand from the private beach."

"Situated 40 feet from the water with private beach and beautiful sunsets every night."

"Short walk from two private beaches."

Often, it doesn't take long before the link gets posted on Saving RI Coastal Access/Rights Of Way, a Facebook group with more than 8,000 members. Soon, the real estate agent – who may have no idea that they've stumbled into a minefield – is besieged with dozens of calls, text messages and emails from people eager to inform them that there are no private beaches in Rhode Island.

It's a scenario that's played out again and again over the last several years. Conrad Ferla, the activist responsible for sparking the grassroots coastal-access movement, can claim a long list of victories: Countless listings have been updated with more accurate wording – "beachfront property" or "access to nearby beaches," for instance – and some real estate agents have quietly stopped using the term "private beach" altogether.

"One of the root problems with losing shoreline access stems from real estate agents selling a house with a 'private beach' that doesn’t actually have a private beach," Ferla recently told the House Judiciary Committee.

Under Rhode Island law, all beaches are public within 10 feet of the high tide line. Even if homeowners have exclusive deeded access and members of the general public can't get there by land, they could theoretically show up in a boat.

But buyers who are spending millions of dollars on coastal properties don't necessarily know that – especially if they're from out of state – and they may be in for a surprise. If there's a public right of way or a town or state beach nearby, their "private" beach might not feel very private at all.

"That’s going to create conflict," Ferla said. "And it has."

Lawmakers propose educating oceanfront home buyers on state law

Rep. Terri Cortvriend, who was behind Rhode Island's new shoreline access law, and Sen. Victoria Gu have proposed a solution: Requiring buyers to sign a disclosure indicating they understand "the public’s rights and privileges of the shore."

Their new home may, in fact, come with a private beach – it's just that it stops being private below the 10-foot line, which might mean that it's smaller than they think.

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Under S 2185 and H 7376, sellers would also have to disclose the existence of any "conditions of public access" or Coastal Resources Management Council permits, and inform buyers if a right of way is located next to the property or cuts across it.

The goal is to avoid situations like the one that's been playing out in Barrington, where a couple purchased a $4.5-million waterfront home without realizing that a Coastal Resources Management Council permit from the 1980s granted the public the right to use the seawall.

That detail never surfaced during a title search, according to the couple, and only came to light after they put up a fence to keep out fishermen.

The Rhode Island Association of Realtors "could support combining shoreline and oceanfront access with an existing real estate disclosure form," chief executive officer Philip B. Tedesco wrote to the Judiciary Committee.

However, they'd prefer "a general statement that the property may be considered oceanfront or shoreline," along with a recommendation that buyers do their due diligence, he said.

The association also believes that the proposed requirement to disclose any CRMC permits or "conditions of public access" would be overly broad and could lead to unnecessary delays in a transaction, Tedesco wrote.

Why advocates want to repeal an arcane law about carriages and footpaths

Cortvriend and Gu, both Democrats representing coastal communities, are also the sponsors of two bills that deal with footpaths. That might sound like an esoteric topic, but it has major ramifications for public access.

The first pair of companion bills, S 2634 and H 7750, seek to repeal an arcane law that's unique to Rhode Island and dates back to at least the 1800s. It states: "No right of footway, except claimed in connection with a right to pass with carriages, shall be acquired by prescription or adverse use for any length of time."

Translated into plain English: A pathway or walking trail can't become a public right of way through adverse possession unless it's also used by vehicles.

Doing away with that requirement would essentially give the Coastal Resources Management Council more latitude in designating coastal rights of way. As Michael Woods of New England Backcountry Hunters and Anglers pointed out, vehicles have been widely restricted from driving on beaches in the years since the law was passed.

"As a result, CRMC’s ability to designate rights-of-way through adverse public use has been practically extinguished, because there is no need for vehicular paths to a location where vehicles cannot be used," he said in written testimony to the Judiciary Committee.

Opponents concerned about implications for property owners

But the bill wouldn't just apply to the shoreline, said Lenette Forry-Menard of the Rhode Island Mortgage Bankers Association, which opposes the proposed change. It would also have consequences for properties like the one she owns in North Smithfield, which includes a wooded area sometimes used as a neighborhood cut-through.

"Many times, kids and other folks will use it as a shortcut to get to the convenience store," she said. "I don't have a problem with that. If this bill were to pass, I would have to stop them from crossing the property and have to keep watch ... or else risk losing part of my property."

Also testifying against the bill was former Cranston Mayor Allan Fung, now a lawyer in private practice.

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Fung explained that a client, Jardin Holdings LLC, purchased a home in Portsmouth in 2019. Previously, neighbors had used a pathway on the property to get from Glen Farm Road to a beach on the Sakonnet River. The new owner put up "No Trespassing" signs and a fence – which was their right, Fung said, but it resulted in litigation.

Fung said that he "didn't even look at this bill as anything nefarious" until he got a call from his client and learned that neighbors were trying to "weaponize" it to get the path declared public. He expressed concern that it would amount to an "end-around."

Of note: When the property was for sale in 2019, the listing touted "water views with fantastic and rare private 400 feet of sandy beach."

Also on the wishlist: A solution for old, forgotten roads

If an unpaved, unmaintained road isn't passable by car, shouldn't you still have the right to walk down it?

That's the basic argument behind Cortvriend and Gu's other proposal, which would have implications for old roads that now serve as walking paths through the woods, as well as coastal streets that are vulnerable to erosion and sea level rise.

S 2641 and H 6745 were partially inspired by The Providence Journal's reporting, which highlighted a little-known dilemma that can lead to the loss of public access and recreational opportunities.

In a nutshell: State law requires cities and towns to either ensure that public roads are passable for vehicles, or formally abandon them, which means that they become private property.

That can cause problems in rural areas where cart paths, stagecoach roads and driftways linked scattered farms and settlements in the 17th and 18th centuries before they were reclaimed by forest.

Those forgotten roads – which often resemble hiking trails, or are so overgrown that they're not visible to the eye – may never have been paved or used by cars. But if they were declared to be public roads in a previous era, they're still technically public, which means people can demand that they be brought up to modern-day standards.

That scenario tends to play out when neighboring landowners want to subdivide or develop their properties, and was the source of a long-running legal dispute in Glocester in the 1990s.

Elsewhere in New England, old roads designated as "ancient ways" function as a trail network for hikers, cyclists and horseback riders, but they don't have to be maintained to vehicular standards.

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The proposed legislation would have a similar result. A town could opt to abandon a road but maintain a public easement, which would mean that it could still be used for hiking, biking and other recreational activities but wouldn't have to accommodate cars.

"It just gives the town another option," Michael Rubin, a former assistant attorney general and advocate for shoreline access, told the House Judiciary Committee.

Why it matters for shoreline access

Proponents of the bill also envision a scenario where towns determine that it's no longer practical to maintain roads that are vulnerable to flooding or erosion.

Abandoning those roads would be "the ultimate real estate jackpot" for abutting property owners, activist Susan Cornacchia said in written testimony.

"Towns must have options to retain the public easements over any roads that provide shoreline access," she wrote.

Woods, of New England Backcountry Hunters and Anglers, similarly praised the bill as a "proactive approach" that would prevent towns being forced to choose between abandoning a road or "incurring unnecessary costs to protect public access" when maintenance becomes impractical.

No one testified against the bill at the House hearing, but Rep. Carol Hagan McEntee, D-South Kingstown, and Rep. Jason Knight, D-Barrington, both voiced a technical concern: As currently written, the legislation would automatically give custody of an abandoned road to the abutting property owners, regardless of whether they want to accept it. Cortvriend said she would work with them to fix that.

This article originally appeared on The Providence Journal: 'Private beach' real estate ads draw fire from RI shoreline advocates