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Beach Access Restricted?

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Although summer is gone and fall is nearing its end, the truth is that even in the heart of winter we never truly have to wait long to enjoy the beach in Florida. The problem this year however is who can access the beach.

During the 2018 Legislative Session, the Legislature passed House Bill (HB) 631, relating to “Possession of Real Property.” The bill dealt with the causes of action known as ejectment, forcible entry, and unlawful detainer. The bill also included what turned out to be controversial change in the law related to “customary use,” which may impact the public’s right to access beach property. If your home or condominium is on the beach, you will be interested in this change in the law.

It is first important to understand that private property owners who live on the beach in some cases own lots that are platted to include the beach area between the dunes and the high-water mark. This could include condominium associations if the common elements or association property includes the beach.

Before the Legislature passed HB 631, counties were adopting “Customary Use Ordinances” which essentially allowed beach access on private property. It was then up to the property owner (this would include condominium associations) to challenge the customary use of their property by non-owners.

HB 631 requires counties to go through a new process in order to adopt a Customary Use Ordinance and places the burden on the county to establish the customary use over each privately owned parcel included in the ordinance. The bill essentially makes it more difficult for counties to adopt Customary Use Ordinances as it shifts the burden from the property owner who previously had to challenge the ordinance in court to the county which now has to establish the customary use truly does exist for that parcel.

If you or your condominium association own beachside property, there is still some dispute regarding how much power a property owner has to “kick out” someone using the beach. The opponents of the new law (primarily the county governments) have stated that the new law lets beachfront property owners “wall off” portions of the beach from the public. However, Representative Paul Renner, a proponent of the bill, wrote an article stating that through the courts, Florida law has recognized the public’s right to the “customary use” of that private property, and that the public can still have beach access if it is an area that has been customarily used by the public. Nevertheless, the new law has caused disputes between beachgoers and property owners and in some cases, law enforcement has been called to mediate disputes.

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