Rental Agreements and the Loss of Small Boat Slips

I recently received a letter from my marina, asking me to sign a new rental agreement, which they are calling a ’license’ (the previous agreement was called a ’wharfage contract’). Can you explain the legal significance of a slip ’license’? The terms of the two agreements are similar, except for a new provision that allows them to rent out my slip and keep all of the rental income if I go cruising. On a similar note, I have observed that many marinas are being reconfigured to eliminate slips for smaller boats. This seems like a form of discrimination, especially in light of the fact that marinas use federal and state tax dollars to construct and operate their facilities. This has a direct impact on an entire class of boat owners who pay taxes like everyone else. Do the affected boat owners have any recourse for this type of discrimination?
This question is actually a compilation of several e-mails I’ve recently received from readers. Boat owners are frustrated with the direction that the slip rental market is going, and they are looking for legal and political tools that will help to give them a voice in that market. The best advice I can give is to look for an ally who can help in Sacramento, because these boaters do not have the basis for any kind of legal battle.

The first part of the question concerned the use of a new agreement described as a ’license’ rather than a ’wharfage contract’ or ’slip lease.’ I suspect the marina was advised to use the term ’license’ to avoid certain restrictions that may be associated with a tenancy that is characterized as a ’lease.’

For example, in most cases, a lease allows the tenant to have exclusive use of the space, so long as he or she is not in default. This would prevent short-term rental by a marina when a tenant leaves for a few weeks. However, the marina probably has no cause to worry. The law will look to the past title of an agreement and determine the rights of the parties based upon the substantive language.

A 1994 case involving the use of Angels Stadium of Anaheim looked at this issue, and the court held that the label given to the agreement is of little importance. The judge noted that arrangements between landlords and tenants are so varied that it is increasingly difficult, and correspondingly irrelevant, to attempt to pigeonhole these relationships based on the title of the document.

The second part of the question concerned the discrimination felt by boat owners when a marina is reconfigured to eliminate small boat slips. This is a frequent question, and I wish I had better news for those who feel they are being discriminated against. It is true that discrimination may be an issue where public funding is involved, but the term ’discrimination’ has a very narrow legal application. Generally speaking, it applies to classes of individuals that the U.S. Supreme Court has found to be historically ’suspect.’ Most commonly, suspect classes are based on race or a recognized ethnic minority. Small boat owners are simply not going to qualify. And, if the rights of an established suspect class are not affected, the marina is free to do what it wants, as long as there is some rational justification and it is not violating any law in the process.

Some of the pain that is felt by marina tenants can be traced to the fact that a slip rental is generally not treated under the law as a residential tenancy. Most of the laws that restrict the behavior of a landlord are limited to ’dwelling units,’ and at least one court has held that ’the right to dock one’s boat at a particular berth or marina cannot be equated with the right to decent low-cost housing, even if one chooses to live aboard the boat.’ As such, tenancies ranging from boat docks to public storage units are effectively treated as a commercial relationship.

One approach to the problems facing marina tenants would involve the legislature’s enactment of laws to address the various issues. Unfortunately, many of the problems, such as the elimination of small slips in favor of larger slips, would pit one class of boat owner against another. A better solution would be to work with the Coastal Commission. In the end, the only effective solution is to build more slips.

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