Special Report: Who Owns Shelly Island?

WAVY Chopper 10 Photo

CAPE HATTERAS, N.C. (WAVY) — The buzz of the beach on Hatteras Island is not up at the Cape Hatteras Lighthouse, it is down under the surface of the water. The talk of the town is what is found at the shores of a newly formed island off the coast of Cape Point south of Buxton.

The name given by locals is “Shelly Island” because of all the shells that wash up with each new high tide and each new day. There are thousands and thousands of shells and they are replenished every day.

Gallery: Shelly Island

The sandbar known as Shelly Island popped up out of the Atlantic looking like a huge crescent moon. Claiming ownership of Shelly Island is Hatteras Island resident and Hampton Roads businessman Ken Barlow. He is adamant he owns Shelly Island. “I own it. It is clear. The story is over,” he told 10 On Your Side.

North Carolina is known as a “Race Statute State” and that gives the first party to record their deed ownership of the property. “I own it. I won the race. I recorded the deed first,” explained Barlow.

What Barlow did first was record a “Quit Claim Deed” with the Register of Deeds in Dare County claiming “all right, title, interest and claim… to Shelly Island.” This is a claim that could end up in federal court.

The question is, Does Barlow really own the sandbar Shelly Island? National Park Service Superintendent David Hallac says no. “Shelly Island is owned by the National Park Service or the state of North Carolina.” We asked him, no one else? Hallac answered, “That is our understanding.” We asked him what about Ken Barlow and his claim? Hallac would only say, “I can’t comment on Mr. Barlow’s claim.”

Hallac won’t comment on Barlow’s Quit Claim Deed, but he knows about it and so does Dare County Manager Bobby Outten who says he is certain Barlow doesn’t own Shelly Island, “I am sure it is either owned by the state or the park service.”

Outten points to North Carolina State Law (General Statute 146-6. Title to land raised from navigable water), which states:

“If an island, by any process of nature or by act of man, formed in any navigable water, title to such island shall vest in the State and the island shall become a part of the vacant and unappropriated lands of the State.”

When asked about this law, he would only say, “I disagree.”

Outten says he sees no scenario under which Ken Barlow owns Shelly Island. He notes Barlow’s Quit Claim Deed, as opposed to a more legally sound and binding Warranty Deed, contains no guarantees of ownership at all. This means Barlow’s wife, who is receiving Shelly Island from her husband, could later find out her husband wasn’t legally able to sell the property at all under the quit claim deed. Outten adds, “The only way his Quit Claim Deed would deed something to his wife would be if he owned something to start with… which he does not,” said Outten. Barlow understands the limitations of a Quit Claim Deed and when pushed the Quit Claim Deed may not be enough for legal standing of ownership says, “We are calling the island…Hatteras Island Veterans Park. We will then turn it over to a lawyer in Southern Shores, and he will draft a general warranty deed.”

There is another issue. Shelly Island is constantly moving. If the sandbar were to merge with Cape Point does that make it federal property? Hallac says, “That is a great question, and it very well could be simply an extension of the National Park Service Property.”

NASA releases satellite images of Shelly Island

Barlow is also a sharp critic of the National Park Service. If given the choice of ownership between the National Park Service and North Carolina he said, “I agree it is state property. It is North Carolina not North Carolina-owned property. It is under the domain and jurisdiction of Dare County and North Carolina.”

Mark Edwards, Deputy Secretary of the Department of Administration, sent 10 On Your Side this statement on behalf of North Carolina:

Shelly Island is not open for claim by private party. The land belongs to either the federal government [see North Carolina General Statute. § 146-6(a)] or to the state of North Carolina [see N.C.G.S. § 146-6(d)].”

Ken Barlow who never runs from a fight says if you think you own it prove it, “If the State thinks they own it, they should have filed a deed. They should have recorded their interest. If you think I’m wrong then take me to court. I own this property and I will pay them taxes as soon as they send me a bill.”

Out on Shelly Island we found Virginia Beach Resident Leslie Wills, and we asked her who she thinks owns Shelly Island, “Who do I think owns it? GOD. Who else?”

10 On Your Side will keep you posted on developments involving the ownership of Shelly Island. In the meantime Ken Barlow plans to return to Shelly Island to plant sea oats later this month to keep the sand piling up, and to stop sand from blowing away.