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The beaches of northwest Florida are a defining feature of the region.  Given their unique natural beauty, the Panhandle’s beaches consistently rank among the top coastal tourism destinations in the United States.  It is not surprising that these coastal areas are also desirable to those in the market for vacation or investment properties.  However, ownership of Gulf front property presents unique legal issues that may not have been contemplated at the time of purchase.

While tourism and development steadily increase in the Florida Panhandle, the amount of available waterfront property does not.  This reality has led to a rise in beach access disputes.  A common issue in these disputes is whether non-owners have a right to use privately-owned beach property for recreational activities.  Several factors impact the answer to this question, which often requires litigation to resolve.

The rights and obligations associated with owning Gulf front property vary depending on the location and title history of the particular parcel in question.  In most of coastal Florida, the beach area below the mean high water line (commonly referred to as the “wet sand”) is owned by the State of Florida and is available for use by the general public.  However, the “dry sand” areas above the mean high water line are subject to private ownership, which in most cases includes the right to exclude others from the property.

Of course, beach fronting properties that are owned by the state or federal government are generally available for public use.  On Santa Rosa Island in Escambia County, for example, most of the beachfront is owned by the County and controlled by a government entity known as the Santa Rosa Island Authority.  The County leases parcels on Santa Rosa Island to individuals on a long-term basis, but reserves the beachfront for public use.  Consequently, there have been relatively few beach access disputes on Pensacola Beach and the other communities on the Island.  Although the Florida legislature is considering transferring ownership of residential and commercial parcels on Pensacola Beach to the leaseholders for tax reasons, the beachfront will remain in public ownership.

In Okaloosa and Walton Counties, by contrast, a significant portion of the beachfront is under private ownership.  The Army Corps of Engineers has re-nourished some privately owned beaches in those counties.  The Florida and U.S. Supreme Courts have held that the public has a right to recreational use of the re-nourished beach areas that lie seaward of the erosion control line, which generally tracks the original location of the mean high water line.  However, for privately owned beaches that have not been re-nourished with public funds (as in many parts of eastern Walton County), there must be a specific legal authorization in order for non-owners to lawfully access the property.

For example, the governing documents of platted subdivisions often grant inland lot owners (and, in some cases, the general public) an easement to use the beachfront areas of the subdivision lots that front the Gulf of Mexico.  A beach access easement may also arise from a standalone document executed by a prior landowner.  These documents are typically recorded in the county’s public records, and are therefore revealed in the title search that most purchasers obtain during their closing.

Aside from an express grant in a recorded document, non-owners may also obtain the right to use privately owned beaches through the legal doctrines of prescriptive easement and customary use.  Application of these doctrines is parcel-specific and, where disputed, must be established through litigation.  A prescriptive easement is similar to the legal concept of adverse possession.  Customary use is a concept that originated in Florida with a 1974 decision of the Florida Supreme Court in the case of City of Daytona Beach v. Tona-Rama.  Customary use has become a controversial topic in Walton County where the Board of County Commissioners recently enacted an ordinance amendment that declares the right of the public to recreate on the beaches by the doctrine of custom.

Whether or not a prescriptive easement or customary use exists on a parcel of “dry sand” beach requires an intensive historical fact inquiry into the nature and extent of the public’s prior use of the parcel.  Unlike an easement contained on a recorded subdivision plat or a homeowners’ association declaration, a title search usually will not indicate whether the public has a prescriptive or customary right to use the property.  For that reason, most title insurance policies for beachfront property in Florida contain a standard exception from coverage for such rights.  The applicability of the customary use doctrine to certain beach properties in our region is the subject of several pending lawsuits.  The doctrine will continue to evolve depending upon the outcome of those suits.

For more information on this and other environmental and land use topics, contact Will Stokes at wstokes@clarkpartington.com, phone:  850-208-7038; or Will Dunaway at wdunaway@clarkpartington.com, phone: 850-208-7020).

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