That’s My Beach You’re Walking On

The law of the land in Florida – that land which is under and around water – is muddy at best.

Numerous brain twister concepts (riparian and littoral rights, general sovereignty lands, navigational servitudes...), combined with jargon that sounds like an acute illness (accretion, avulsion, reliction...), can leave even the most seasoned real estate professional shaking their heads, wondering why they ever thought it wise to show that beachfront compound in the first place.

Fortunately, at least one concept in the realm of waterfront property law is not entirely opaque.

As a result of the so-called “space needle” case (City of Daytona Beach v. Tona-Rama, Inc.), the public was granted certain rights to use customarily private beachfront areas lying above the mean high water line.  In other words, this litigation created a class of privately owned beach properties burdened with public rights and privileges.

In order for the public’s entitlement to accrue, the use of the sandy area has to have been “ancient, reasonable, without interruption, and free from dispute.”  As a matter of custom, the use cannot be interfered with or revoked by the land owner.  However, it “is subject to appropriate governmental regulation and may be abandoned by the public.”

Note that this does not create an interest in the land itself, i.e., no prescriptive easement or adverse possession claim.  It is a right of usage only through custom (a legal anomaly if ever there was one).  And, the concept is not limited solely to gulf- and ocean-front beaches.  Impacted properties may also consist of lakeside or riverside recreational areas and beaches.

The end result?  Land owners with the possibility, but no history, of public intrusion have a strong incentive to restrict access to the sandy areas of their property, if for no other reason than to ensure that the public’s right of access does not accrue.

For the Realtor involved with a beachfront property, who is faced with questions like “can the public walk on my beach?” or “how can I stop people from walking on my sand?”, the immediate (and best) response is not simply a “yes” or a “no,” or “let me help you put up a fence.”  Just like most laws involving the general subject of waterfront property rights, the answer is more nuanced, and one you want to consider in conjunction with your real estate attorney after a thoughtful assessment of the property’s use and history.

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This information in this site is not intended to establish an attorney-client relationship, and if anything herein could be construed as legal guidance or advice, I strongly encourage you to consult with your own attorney before relying upon any such information.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

dunlapmoran.com

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