In late March 2018, Governor Rick Scott signed House Bill 631 (HB 631), also called “The Possession of Real Property Bill.” Scott’s approval of HB 631 has stirred up confusion about what this means for Florida beaches, with the broad interpretation that all beaches are private as of July 1, 2018. Hold your flip-flops! This is not the whole story. The law isn’t really changing with HB 631, instead, it is being more clearly defined. Let’s take a closer look at the debate, the roots of HB 631, customary use, what the bill actually says, and whether homeowners can own a piece of Florida beach.
Proponents and opponents of HB 631 have clear positions on access and exactly who should be allowed on certain portions of Florida’s beaches. Two rival values that are embedded in American society underpin the debate about access to Florida’s beaches, of which 60% are private. The first group believes private property owners are permitted to exclude whomever they wish from coming on their property. However, it’s been the tradition that coastlines in the U.S. are free for public use. Some homeowners who live next to the beach believe that they have the right to limit access to the sand within their property lines. Conversely, other homeowners and tourists believe that the sand on Florida’s beaches are a public good that is there for all to enjoy. Florida law reads that the state must “ensure the public’s right to reasonable access to beaches,” but increasingly over time, local governments have given public beach access points to developed waterfront communities, who limit access to the beach, because residents of these communities pay large amounts of taxes.
The Roots of HB 631
Over time, the state of Florida and other coastal states have used several doctrines and legal tools to preserve or limit public beach access, but ultimately everything begins with the public trust doctrine. In ancient Rome, the seas and tidal land were required to stay open to the public for fishing and navigation; this spawned the idea of a public trust seashore which has been adopted by the legal systems of many other countries. The doctrine appeared in the U.S. from England during the Revolutionary War and almost every state has some form of the public trust doctrine in their laws. It is the wet sand that is governed by the public trust doctrine; this is the area that is below the mean high water mark. The land that is being debated is the dry sand above the mean high water mark. Where the issue of wet sand gets tricky is when considering access; if the public needs to cross a private beach to get to the wet sand, these parts of the beach are a resource in name only.
The notion of customary use means that private property owners cannot interfere with public beach access in places where the public has used the beach over time. This repeated use creates a customary right. Seven requirements make up the doctrine of custom; the use must be “ancient, exercised without interruption, peaceable and free from dispute, reasonable, certain, obligatory, and consistent with other customs or laws.” Florida has applied the customary use rule to protect public access to beaches in the past in a couple of cases. After a broad application of the rule, the Florida Supreme Court clarified the scope in a later case, and ruled that the customary use doctrine must be applied on a case-by-case basis.
What Does HB 631 Say About Beaches?
The controversy surrounding HB 631 is that the bill prohibits local government bodies from creating customary use laws for their beaches. If you are a glutton for punishment, you can read the entire bill here. Only a short section deals with beaches in the 18-page document. Section 10 of the bill creates Florida Statute Section 163.05 – Establishment of Recreational Customary Use. The short section of the bill defines a government entity and declares that “a governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high water line…unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.” The remainder of the section outlines the process that a government entity must follow when it wants to affirm recreational customary use of a beach. Most importantly, the new law does not apply to any ordinances that were adopted by a government entity and in effect before January 2016.
What does HB 631 mean for property owners and beachgoers?
HB 631 has spurred a contentious debate that has left some very confused about what it means for property owners, tourists, and locals, after July 1, 2018. The reality is that most people who live on or visit the Florida coast will not notice anything different in terms of beach access. In some areas, nothing will legally change. The law does not automatically change all of Florida’s public beaches into private beaches. For example, the new law will not affect access to Miami Beach because the State of Florida owns all the beaches in Miami.
The law, however, will make it more difficult for any city or town to guarantee public beach access to beaches that are already privately owned, but the law does not take away the right for a city to make customary use ordinances. Instead, a city or town must give notice to a property owner and bring the ordinance in front of a judge to prove customary use above the median high water line. Where private property meets the median high water line, property owners have the right to ask people to leave if they are above it in the dry sand area of the beach. The wet sand is still public domain as outlined in Article X, Section 11 of the Florida Constitution.
If you are looking to buy or sell a beachfront property, contact a reputable real estate agent to help you through the process.