Alessandra Stivelman, a partner at Eisinger Law is an AV rated attorney who focuses her practice on community association and real estate law. Stivelman breaks down the basics to explain what Senate/House Bill 163.035 means for Florida residents.
What is its purpose?
S/HB 163 was created to resolve disputes between owners of private oceanfront land and local governments.
What is the law’s intent?
To establish a simple and equitable process by which a government entity may seek the judicial determination of recreational customary use to of private beach property.
What does it mean?
The new bill prohibits a government entity from keeping an ordinance in effect, or passing measures which establish customary use, allowing public entry to privately owned beaches above the mean high-water line (dry sand areas). The law cannot be enforced if there is an existing ordinance or rule based upon a judicial declaration affirming recreational customary-use of the beach or can show that the beach has been used for years by the general public and in effect prior to January 1, 2016.
What are its consequences?
The new law gives hotels, condominiums and private homeowners more control over the beachfront they own, all the way to the high-tide line. After July 1, 2018, local governments will have to go straight to a judge to argue whether the public should be blocked from the sand.
Was this a popular bill to support?
The bill passed in the Florida House by a vote of 95-17 and in the Florida Senate by a vote of 20-7. Florida Sen. Kathleen Passidomo, R-Naples sponsored the Senate version of the bill signed by Governor Rick Scott.
Approximately 60 percent of Florida’s beaches are privately owned.
There will not be a major impact in South Florida. In South Florida the new law won’t affect beach access. All beaches in Miami Beach are public and owned by the State of Florida. This law will impact municipalities with privately owned beaches, such as Walton County in Florida’s Panhandle, where private properties are owned up to the mean high-water line. Oftentimes the public is currently using these beaches.
What does customary use mean?
The term ‘customary-use’ refers to a general right of the public at large to possess and use certain dry sand areas for recreational purposes. Where a customary use of a dry sand area is shown, the property owner may not use traditional causes of action like ejectment, forcible entry or trespass to stop such public use of the private land.
Does the new bill provide procedure to alter local enforcement of the law?
Yes. After July 1, 2018, any city or county that wants to attempt to allow public access must now first:
- File a complaint in Circuit Court to determine whether the land is subject to the customary-use doctrine.
- If so, than the government entity, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property and notice of the public hearing to the owner of each parcel of land.
- Within 60 days of adopting the notice of intent, the governmental entity must file a Complaint for Declaration of Recreational Customary Use with the circuit in the county for a judicial determination among many other procedures.