Center for Property Rights

Leg⁠i⁠sla⁠t⁠ure s⁠t⁠eps up ⁠t⁠o pro⁠t⁠ec⁠t⁠ proper⁠t⁠y r⁠i⁠gh⁠t⁠s

By: The James Madison Institute / 2018

The Florida Senate has passed a bill that deserves the attention of property owners and government entities everywhere.

Property owners in the United States are entitled, according to the U.S. Constitution, to the blessings of five rights regarding their property: possession, enjoyment, use, exclusion, and dispossession. Last year, the Walton County Board of County Commissioners approved an ordinance that denied local beach property owners their right of exclusion.

The ordinance adopted by the commissioners opened privately owned beaches for recreational use by the public. The stated justification for this misguided decision was the “Doctrine of Customary Use.” To understand the issue in Walton County, or anywhere else, one must understand this doctrine.

Customary use dates back to British common law. It is law based on precedent, not statute. Consider a person who regularly travels from point A to point B by traversing across another person’s private property. This repeated use of another’s property for this purpose becomes undisputed over time. Such use thus becomes “customary use” and is considered a legal right, even though neither a king nor a government legalized it by decree or statute. Should a dispute arise in the future, the traveler must prove that his customary use is: (1) ancient; (2) reasonable; (3) without interruption; and (4) free from dispute. When disputes arise over a question of customary use, the issue must be decided in its proper and lawful place – in a court of law, where due process can be exercised.

It is critical to understand that, when such a dispute arises, it is not something to be resolved legislatively. Rather, it is something to be litigated – an issue for a court to decide. When the Board of County Commissioners took the legislative step of enacting its ordinance, it circumvented the due process that is the purview of the judicial branch – a court of law.

Such a case is not without precedent. A 1995 ruling by Florida’s Fifth District Court of Appeal held that the customary use doctrine “requires the courts to ascertain in each case the degree of customary and ancient use the beach has been subject to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past” (Reynolds v. County of Volusia, 659 So.2d 1186, 1190).

Recently, state Rep. Katie Edwards-Walpole won approval of her bill (CS/HB 631) addressing this issue. That legislation includes language prohibiting local government entities from passing ordinances based upon customary use. The bill does not deny beach access to anyone, but it does direct disputes to the proper and lawful place where they should be settled: the courts. This week Senator Kathleen Passidomo saw her bill, SB 804, considered in the Senate chamber. The Senator substituted Representative Edwards bill for hers and the Senate voted its approval. Now the bill has passed its final vote and will be sent to Governor Scott for his signature.

English philosopher John Locke observed, “The only task of the government is the protection of private property.” It is good government policy to protect the rights of property owners, with a court system that is fair and objective to handle disputes that arise. Floridians and local government entities will be well-served by this important legislation because it will make sure misguided property rights violation perpetrated by Walton County is not duplicated elsewhere.

Dan Peterson is the director for the Center for Property Rights at The James Madison Institute.