Are Florida Courts Tightening the Noose Around Private Beach Use?

With over 825 miles of accessible beaches, and nearly 1,000 people moving to Florida per day, the battle between public access and private ownership of coastal lands is as alive as ever. In August of this year the Eleventh Circuit Court of Appeals (“Court”) took up just such an argument in Buending, et al v. Town of Redington Beach between Redington Beach (“Town”) and several beachfront homeowners.

Redington Beach, like many beach towns and cities, is composed largely of single-family homes and is not primarily a tourist destination – though tourist do, inevitably, visit. The case centers around an ordinance passed by the Town granting access to the dry sand portions of the beach behind a few parcels of land owned by private individuals seeking to prohibit general public use.

Ultimately, the Court did not make any final determinations based on the specific facts of the case; it was sent back to the lower court for reconsideration of the evidence. However, the extensive discussion of customary use as it relates to Florida’s beaches, and abutting private property, presents a myriad of considerations for existing and potential property owners that want to prohibit public access on their property.

The states constitution already reserves a right of public access to the “wet sand” portion of the beach – that area up to the mean high-water line. In 2018, the Florida legislature also created Section 163.035, Florida Statues, which imposes additional requirements for cities and towns wishing to establish a right to public beach access. Based on these laws, privately owned lots theoretically include the dry sand beach, and an owner could prohibit access.

However, Florida case law continually describes the state’s beaches as so unique, their use so intrinsically part of Florida’s culture, that in terms of property disputes, beaches must be considered in a different manner than other lands. Therefore, Florida has traditionally observed the common law application of “customary use,” as confirmed by the Florida Supreme Court in City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, 78 (Fla. 1974).

The standard generally requires proof that the use in question has occurred since “time immemorial,” continuously at, or along a certain location, by an identifiable group of persons. If proven, a right to make use of private property by those with no legal interest therein is created. The Court’s opinion in this case, however, suggests the threshold for proving customary use may not be as strict as previously thought.

The Court determined the Town did not have to prove the specific properties were traditionally used by the public, but only the general area was. Additionally, the Town’s evidence, considered sufficient to overturn the lower court’s grant of summary judgement to the owners, included testimony that the Town’s founder established multiple points of beach access, fisherman stood on the dry sand while shore fishing, the Town held three (3) public events on the beach a year, the Town maintains visitor parking, and that individuals using the dry sand beach had never been told they were not allowed to.

Without a determination on the facts by the Court, the Town must still clear the hurdle of a rehearing with a lower court that already ruled against it, but the impact if it prevails could be far reaching. Even with the limited access provided in Florida’s constitution, and the additional requirements implemented by the legislature, private property owners challenging public use of the beaches behind their homes and businesses will face an uphill battle.