Who Owns The Beach In Florida? And Why Does It Matter?
By Christopher Carter - Real Estate Broker Associate
July 26, 2023
I last sent this article about a year ago, though for the benefit of the thousands of new Florida property owners and residents, here it is again today. Florida has over 1,300 miles of coastline and over 650 miles of sandy beaches, according to the Florida Department of State. Some of that beachfront is privately owned (about 60%), while the rest is State, County, or City controlled. For decades, there have been ongoing questions over who can use certain stretches of beach along Florida's Atlantic and Gulf Coasts.
We will be discussing the ownership of beachfront property and what might be considered "using" a certain stretch of beach. Keep in mind that ownership, allowed use, and enforcement can be VERY different considerations.
Let's start with a definition of the Mean High Water Line (MHWL), an important measurement when it comes to beachfront property lines. Florida Statutes 177.27(14) and (15) establish the MHWL as the average height (elevation) of high tide saltwater at a specific location on the shore over a 19-year period. Most of us who go to Florida beaches think of a high-tide mark as how far water comes onto the beach (distance) at high tide on any given day. Same basic concept, just different ways to look at it.
The MHWL measurement uses an average because beach sand and bottom contours change every time the tide goes in or out, and definitely whenever a Hurricane makes landfall. It is usually just surveyors who deal with the technical MHWL, which can be very difficult and involved to precisely locate.
The simpler version of this has become the "wet sand / dry sand" public interpretation of beach access and use. Why is this important?
Because the State of Florida holds all land seaward of the MHWL ("high tide line") in trust for use by Florida residents and visitors - the public.
Remember that during low tides, some of the dry sand close to the water was wet during the last high tide so the "wet sand / dry sand" rule isn't literal to circumstances all the time. It is the average high tide line (MHWL) that always applies whether that stretch of beach is currently experiencing a low or high tide.
On coastal Florida beaches, sand that has been wet from normal Ocean or Gulf waves and tide action is always public access and use, dry sand can be either public or private.
Though it's not quite that simple. It depends entirely on how far a recorded private property line extends toward the water.
Privately-owned beachfront property can extend to the MHWL, including all the dry sand. Though not all beachfront private property lines extend all the way to that average high tide line. The recorded Deed has to be examined to see if they do or not.
A quick informal reference can be the County's aerial photo with lot line overlays, usually available on the County Appraiser's Office website.
In the Appraiser's Office aerials to the right, the upper property extends all the way to the MHWL, while the lower one does not. In VERY simple terms, the owners of the upper property may be able to prevent the public from walking along the dry sand between their house and the high tide line, which is deeded private property in this case. The owners of the lower property do not have the same right to exclude public use because their private property does not extend all the way to the water.
In addition to individual residential owners, other entities may be able to enforce private beachfront rights when their properties extend to the MHWL:
• Hotels and other lodging, food, and recreational businesses
• Condominium Associations
• Private Clubs
• HOA Master Associations
The County (and/or incorporated City) in which a property is located has the authority to charge owners property taxes. They also establish, recognize, and provide enforcement procedures for individual owners' property rights...including the rights of beachfront property owners to control who can walk or sit on the dry sand beach in front of their houses.
Counties and Cities also own and maintain large stretches of beach for public use and enjoyment. Everyone can walk, sit, play, and swim wherever they like. In these areas, private beachfront lots end at the vegetation line between dry sand and the property's private yard, "upland" from the public beach.
There are many areas where you may have to cross private dry sand in order to reach the public wet sand. How does that work? Is there an easement for the public to get to "their" wet sand?
And Then There's "Customary Use"
In 1974, Florida's Supreme Court openly recognized the concept of Customary Use of privately-owned beachfront by stating "if the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption and free from dispute, such use as a matter of custom, should not be interfered with by the owner."
Attorneys tell us that "...the sandy area adjacent to the mean high tide..." means the dry sand beach, and the use of "ancient" is legally interpreted and considered to be 50 to 70 years. Pretty good chance that people have been walking along any given stretch of Florida's sandy shoreline since at least the 1960’s and 1970’s.
Note that Customary Use only applies to private beachfront properties that extend all the way to the MHWL. Those properties that do NOT extend onto and include the beach sand are not affected by Customary Use because they do not own the dry sand.
Under this published legal opinion, local Cities and Counties established Customary Use ordinances for stretches of beach that included private property, acknowledging previous public use and protecting future public use. If beachfront private property owners disputed the public's Customary Use on "their" beach, they had to challenge that use in court.
However in 2018, Florida Statute 163.035 was signed into law, significantly changing the procedure to challenge Customary Use. Now it is much more involved for local governments to affirm and support Customary Use, and easier for beachfront property owners to dispute it. Attorneys have described this change as switching the "burden of proof" from the property owner to the local municipality that established Customary Use. Disputes over Customary Use are now considered on a case-by-case basis, supposedly without reference to previously allowed use.
Here's an important point - when ownership or control of beachfront private property changes through a sale, inheritance, or new trustee, the new person in charge may want to enforce private property rights more than the previous one. Walking across a certain stretch of dry sand may be allowed one day, and challenged the next day if owners decide to start exercising their private property rights.
Previous owners may have gladly allowed public Customary Use while the new ones want to keep the public from walking across their dry sand. Under the newer application of Customary Use, an owner can dispute and challenge public access at any time, compelling the local municipality to go through the legal system to support City or County reasons for recognizing Customary Use.
Some owners of beachfront property throughout Florida have been known to put up "Private Beach / No Trespassing" signs and fences or rope barriers to prevent the public from walking across their dry sand beaches. There are even cases of property owners calling local police or hiring private security to keep the public off their section of beach. (I am not making this up.)
Now that we know a little bit about the MHWL, wet sand/dry sand, lot lines, and Customary Use...how does all of that relate to things in actual practice?
• When walking onto a beach from the land side, always look for signs indicating who has authority over the beach. This could be the State, County, City, or some private entity. When there is no sign, try to find out whose beach it really is.
• If you are walking along the shore and come to a "Private Beach" sign or barrier across the dry sand, walk across that stretch close to the water. Respect the sign, then later you may want to verify its claim with local authorities.
• Don't even think about planting your beach chairs, towels, and umbrella on a beach you know is private. It is most often beachfront hotels, owners associations, and membership clubs that will actively enforce their private beaches.
• In real life, when a private property extends all the way down the dry sand to the high tide line, many (if not most) residential owners understand and accept Customary Use by the public. Often, they don't mind people walking across their private dry sand, though they may prefer that you don't bring your beach gear, plant your umbrella, and hang out for the day. Beachfront hotels and owners associations don't usually mind beachgoers walking along the shore, though only allow hotel guests and members to sit and relax on their dry sand.
Florida has some of the most beautiful beaches in the world. East Coast beaches are different from West Coast beaches; Northern Florida beaches are different from those in South Florida. Enjoy, appreciate, and respect them all.
Editor's Note: Christopher Carter is NOT an attorney. He does not give legal advice. For interpretation and application to specific circumstances of anything you read in this article, you must speak with a Florida-Licensed attorney.
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