Florida’s beaches have long been preserved by the State of Florida as property “held in trust for the recreational use of the public”. Florida law states that the public has the right to freely use all beaches “below mean high water”. Interpretation of “below mean high water” has been controversial over the years. In some cases the “vegetation line” has been considered the high water line. In other cases the “wrack line” (the seaweed and debris line) has been used.
The ”mean high water line” rarely includes all the dry sand, and sometimes is only the wet sand. As such, the legal description of “mean high water” will continue to be open to interpretation. Enforcement of trespassing ordinances must be done in good faith, considering the rights of the land owner and the rights of the beach goer. Enforcement that is too strict may result in costly legal challenges.
The location of “mean high water” is difficult to determine for two reasons:
1: Because the time frame to determine the line has never been established. Defining “mean high water” over the past year can be far different than “mean high water” over the past week, or lunar cycle. High and low water are determined by the moon, storms and even by climate change.
2: Because beaches move. Warnings of beaches being lost due to erosion or sea rise should include the fact that natural beaches are rarely threatened. Beaches simply move. Beaches are often lost because of structures.
Thankfully, access to beaches via public access easements or pathways in Florida has usually been protected by state, municipal and county governments. They recognize the importance of preserving public beach access.
Another historic type of beach access in Florida determined by courts is a “prescriptive easement”. This type of public beach access is defined as an access point customarily used by the public over many years. Recent state legislation signed into law in Florida determined that a prescriptive easement does not exist unless a judge makes that ruling. This puts the burden of proof on people who believe a prescriptive easement exists, rather than placing the burden of proof on a landowner who closed a beach access point that had been customarily used over many years.
After passage of the above legislation, it has become more frequent for owners of private land fronting on Florida beaches to place “No Trespassing” and “Private Property” signs in various location on or near their land, including at public access points. Such signs have intimidated beach goers who are led to believe that a legal public access pathway is private property. In one case in the Town of Ocean Ridge, beach goers at a public pathway were greeted with “Private Property, No Trespassing” signs posted on both sides of the pathway. The signs faced due west and clearly intimidated beach goers who were on a public beach access pathway to the ocean. After complaints to the Town, the signs were required to be turned 90 degrees, so they were correctly posting the private property on both sides of the pathway.
In the Town of Palm Beach a resident posted the edge of his private property with round posts stating “Private Beach”, which were not understood by the public since a round sign faces all directions. The signs were also placed into the wet sand at the edge of the ocean in violation of state law. If the Code Enforcement Board and the Town of Palm Beach had required the land owner to secure a permit for the signs and clearly mark only private property above mean high water, this confusion and intimidation could have been avoided.
Posting “Private Property” with signs in the correct way is appropriate. However, “Private Beach” signs are never appropriate in Florida because such signs make a statement that the private land could include the entire beach, to the water.
Other problems have become more frequent regarding public and private land on Florida’s beaches. According to state law, the public is entitled to walk on and enjoy all of Florida’s shoreline below mean high water. By rights, the public should be able to walk, use and enjoy the shoreline unimpeded around the entire state (except for military installations and shoreline construction projects). This right has been present for all of recent history and has been protected in court.
The only state in the United States that has private beaches is the state of Maine.
Boundaries of private and public land on Florida’s beaches are available on plat maps and at county tax offices. Beaches normally move due to sand accumulation or erosion. Taxable private land can extend below high water and can even be submerged. In such cases the right of the public to access the wet sand beach should not be denied. Surfrider Foundation is prepared to challenge the denial of access to such beaches.
All land below mean high water is owned by the state of Florida, out to a distance of three miles. Public beaches under the jurisdiction of local ocean rescue and lifeguards are maintained for the use of the public. In these cases the local government has jurisdiction, but not ownership. Beyond the three miles of state waters, jurisdiction lies with the federal government, out to international waters.