The legal doctrine surrounding customary use in Florida can, at times, be complex. That’s why clarity was needed under Florida law to protect the rights of all Floridians. When a bipartisan majority in the Florida Legislature voted to pass HB 631 earlier this year, they were voting to protect the private property rights and the right to due process for Floridians.
Florida Senator Kathleen Passidomo, who represents the coastal community in Southwest Florida, was one of the many lawmakers who voted in favor of the legislation. She was an effective state representative for many years and was then elected to the Florida Senate in 2016. As an attorney and a lawmaker, she provides an excellent summary of the legislation that can be found on her website. The summary clarifies many of the misconceptions with the current law and helps provide additional background for why a law like this was necessary. You can read the summary below:
Two years ago, I sponsored a technical bill dealing with the Marketable Record Title Act. As the bill moved through the process, an amendment was added to address an issue that had arisen in Walton County dealing with “Customary Use.” (Customary Use is a common law judicial doctrine as established by Florida’s Supreme Court that provides for the recreational use of privately owned land by the public if the recreational use has been “ancient, reasonable, without interruption, and free from dispute).
Walton County had passed an ordinance in violation of Florida’s customary use common law that had been in place since the 1800s which provided that matters dealing with “customary use” may only be determined by the courts. The amendment to my Marketable Record Title Act bill created a preemption to the state for all matters dealing with customary use. I did not agree to that amendment because I believe that only the courts should determine matters dealing with “customary use”, not the state nor local government. So I “killed” my own bill. Last session, in response to the issue, I met with representatives of Walton County and the beachfront property owners, and together with the Real Property Section of the Florida Bar, we collaboratively came up with a bill to address the issue. The bill passed with a majority vote in the House and the Senate and was signed into law by the Governor. Shortly thereafter, both sides to the issue reneged on the agreed upon bill. Property owners filed a lawsuit in federal court to declare customary use unconstitutional and the county began to both vocally and vociferously criticize the bill.
To compound the issue, as the upcoming election began to take shape, organizations funded by Democratic operatives began attacking the bill by misrepresenting to the public the affect of the bill. The media picked up those attacks and reports began to circulate that the bill was intended to privatize Florida’s beaches. Nothing could be further from the truth.
The new law is a simple process bill that gives local governments the tools they need to provide customary use access to the public on private land adjacent to the public beach.
Briefly, the process provides that a governmental entity that wishes to assert the use must have a public hearing to adopt a notice of intent to affirm the existence of a recreational customary use on private property. The form of the notice is detailed in the statute. During the hearing the governmental entity needs to establish that the use is “ ancient, reasonable, without interruption and free from dispute” (as is the case under the common law). Within 60 days after the notice is adopted at the public hearing the governmental entity needs to file a complaint in Circuit Court for a Declaration of Recreational Customary Use on the affected properties. The affected property owners have the right to intervene in the proceeding and the court must determine whether the evidence presented by the governmental entity demonstrates that the recreational customary use identified in the notice of intent complies with the statutory requirements of ancient, reasonable, without interruption and free from dispute.
There is nothing in the bill that authorizes anyone to block access to a beach or to put up ropes, signs or fences or any other obstruction on the beach. There is nothing in the bill that authorizes law enforcement or mandates anyone to arrest or remove anyone from the beach. There is nothing in the bill that set forth a “line” of where the public is allowed or is not allowed to be. The bill doesn’t in any way change the law of this state pertaining to customary use of Florida’s beaches that has been in place since the beginning of statehood. The text of that bill that was signed into law is below.
It is disheartening to me that anyone would use scare tactics or promote patently false information for political purposes about something so sacred as the public’s right of access to Florida’s beaches. This kind of political maneuvering only serves to cause a great deal of anxiety and stress for our citizens and confirms their distrust of the political process.
I would be happy to meet with any constituent who is concerned with the issue.
Any property owner who has questions about customary use should contact an attorney to ensure that your private property rights are protected.