Access to the coast might be dwindling.

        According to the DEP, more than 60% of the beaches in Florida are private.  Both vacationers and locals are being shooed off ‘private’ beaches in a state where tourism accounts for $57 billion of the state’s economy every year.

            As beachfront property owners chase off unsuspecting beachgoers and post “No Trespassing” signs along their property lines, those of us who are not fortunate enough to have the coast in our backyard should become informed about where their private property ends and the public beach begins.

            The dry sand beach, or the part of the beach above the median high water mark, is the area owned by private property owners.  The median high water mark is determined by the average height of the waters over a period of 18.6 years.  Any water falling below the median high water mark is land that falls within the public trust doctrine—held by the state in trust and available for the public to enjoy!  It is possible for Florida to expand the public trust doctrine beyond the median high water mark in the future, which has occurred in other coastal states.  New Jersey allows swimmers, boaters, and fisherman to enjoy the area above the median high water mark as long as the uses are “reasonably necessary.”  Texas even extends the public trust rights all the way up to the vegetation on the beach.

            Nonetheless, the Florida Supreme Court has allowed the public to establish a customary right to the beaches based on the common law customary use doctrine.  This doctrine allows the public to maintain that right if certain prerequisites are met (the right is ancient, uninterrupted, peaceable, reasonable, certain, etc).  However, the Court later narrowed the doctrine’s scope to a case-by-case basis and courts must now examine each particular beach’s customary use individually to determine if the criteria are met.

            There are other techniques that states have employed in an attempt to assure that their beaches remain available to the public.  Eminent domain is a viable option, but can be costly for coastal property.  An implied easement (when property is landlocked by other properties and it’s assumed that the grantor intended to convey accessible land) is another option, but can be hard to establish without historical evidence of the state’s intention.

            Florida has become famous for the sunshine and sandy beaches, but tourists will likely vacation elsewhere without sufficient access to those sandy beaches.  In this economic downturn, the state can’t afford to lose any tourists!

            Beth Caudill, Intern