Author: Steve L. Henderson, Board Certified Real Estate Attorney
ON JULY 1, 2018 the Florida legislature adopted Fla. Stat. Section 163.035 intending to put a stop to some county and municipal efforts to proclaim that dry sand areas of their beaches were open to the public. The law also codified the Customary Use Doctrine and provided a legal process for establishing public rights in dry sand areas.
Some people wishfully believe that all Florida beaches, including dry sand areas up to the vegetation line, are public property. Not true. The majority of Florida’s oceanfront is privately owned. Absent beach re-nourishment projects, beachfront property ownership extends to the mean high water line of the ocean. Seaward of that boundary, the wet sand areas are owned, in public trust, by the state. Beachgoers have a right to enjoy the wet sand areas but those who toss their beach towels on dry sand areas may be trespassing on private property.
The doctrine of customary use dates back to Medieval England where by immemorial (as long as anyone can remember) custom, citizens would acquire the right to use land in specific localities. With the exception of Oregon and Hawaii, the doctrine has not been widely accepted in the United States. In Florida, the customary use doctrine was first discussed by the Florida Supreme Court in the 1974 case of City of Daytona Beach v. Tona Rama, Inc. The court recognized that, given the right circumstances, a public customary use right could be established in defined dry sand beach areas. Under Tona Rama and the statute, if it can be judicially proven that the public’s recreational use has been ancient, reasonable and without interruption or dispute, a governmental entity or a member of the public may be able to judicially establish customary use rights.
There are some common misconceptions about customary use. First, customary use rights don’t exist until a court rules that they exist. Until that occurs, an upland property owner may be legally entitled to restrict public access to dry sand areas located within his property boundaries. Second, the burden of establishing customary use rights is on the governmental entity or person asserting customary use. The upland property owner is not required to prove the absence of customary use. Finally, the establishment of customary use rights is geographically limited. A finding of customary use for one tract of beach does not create use rights in other areas of the beach.
WHILE MANY PEOPLE AND POLITICIANS WOULD LIKE TO SEE ALL FLORIDA BEACHES, INCLUDING DRY SAND AREAS, AVAILABLE TO THE PUBLIC FOR RECREATIONAL USES, LEGISLATING THAT RESULT AT A STATE OR LOCAL LEVEL WOULD VIOLATE PRIVATE PROPERTY RIGHTS AND DUE PROCESS PROTECTIONS. Currently there are two legal ways of establishing public rights to dry sand areas. First, counties/cities could, in accordance with the law, seek judicial determinations of customary use. For example, in 2018, Indian River County filed a legal action seeking a court determination of customary use for 2000 feet of dry sand areas adjoining Summer-place. Alternatively, local government could acquire public ownership of title or easements through eminent domain proceedings and pay compensation to oceanfront owners. Either approach would involve significant expense and require broad public support.