Open question for beach front homeowners, their lawyers and their politician friends

[Shannon Lince]

Actually the Florida Supreme Court set out its view of English custom law and how it should be applied in Florida in the quote below. It
has been the law in Florida since 1974. And Florida is not the only state to recognize customary use as a legal concept embedded in the common law. On your point of assumptions, you and I may have a dispute as to whether you breached a contract. If you simply say, "I did not breach" it does not mean that you didn't. It means you assert that you didn't. As you point out, a court will decide. To be sure, I would have to put forth proof that you breached and the court would have to agree with me. On that I think we are in absolute agreement. But it does not mean that you did not breach simply because you said you did not. There is an unresolved dispute. That is exactly what we have here and the dispute will be resolved one way or the other. If a court determines that there has been customary use of a parcel all along, then all the claims that I own the beach and have the right to exclude others will turn out to have been incorrect. Like I said, this is obviously an emotional issue but it is a legitimate dispute over property rights that the courts will have to resolve. Each side will have their arguments but you can't just assume the answer and customary use is not some crack-pot theory invented at the 11th hour.

The beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequences of title. The sandy portion of the beaches are of no use for farming, grazing, timber production, or residency the traditional uses of land but has served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public. The interest and rights of the public to the full use of the beaches should be protected. *78 Two states, Oregon and Hawaii, have used the "customary rights doctrine" to afford the rights in beach property. State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); In re: Ashford, 50 Haw. 314, 440 P.2d 76 (1968). See also Fla. Law Review, Easements: Judicial and Legislative Protection of the Public's Rights in Florida's Beaches by W. Roderick Bowdoin, Vol. XXV, No. 3, pp. 586-590 (Spring 1973).

As stated in Tiffany Real Property, (Third Edition), Vol. 3, § 935:

"In England, persons of a certain locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants of a certain town to dance or play games on a particular piece of land belonging to an individual, or to go thereon in order to get water. So there may be a custom for fishermen to dry nets on certain land, or for persons in a certain trade (victualers) to erect booths upon certain private land during a fair. The custom, to be valid, `must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created.' ... "Occasionally in this country it has been decided that rights to use private land cannot thus be created by custom, for the reason that they would tend so to burden land as to interfere with its improvement and alienation, and also because there can be no usage in this country of an immemorial character. In one state, on the other hand, the existence of such customary rights is affirmed, and in others this is assumed in decisions adverse to the existence of the right in the particular case." (pp. 623-624)
If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself. Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public. The rights of the owner of the dry sand area may be compared to rights of a partowner of a land-locked nonnavigable lake, as described in Duval v. Thomas, 114 So. 2d 791 (Fla. 1959).

There is no need to cut and paste T-R. Please review the word "if" from a legal standpoint. Have you actually read Tiffany? Not just the section, but the entire text on custom? Or Blackstone?

There's been a few cases clarifying T-R. You might want to review those before continuing with putting all your eggs in the T-R basket. You also should review earlier cases where custom was defeated.

What are your thoughts on MRTA?

Shannon

 

[Shannon Lince]

We are talking real property; not contracts. You have a big IF; "If a court determines that there has been customary use of a parcel". No emotion here. At least you have done some homework; unlike most who post. I want property rights facts and law please; not your sand is my sand slogans (not you but others). There are 47 states that do not recognize ancient common law customary rights to all private beaches.

I would only add there are states which reject the doctrine of custom entirely.

 

[twinbrew]

There is no need to cut and paste T-R. Please review the word "if" from a legal standpoint. Have you actually read Tiffany? Not just the section, but the entire text on custom? Or Blackstone?

There's been a few cases clarifying T-R. You might want to review those before continuing with putting all your eggs in the T-R basket. You also should review earlier cases where custom was defeated.

What are your thoughts on MRTA?

Shannon

Trying to understand your position a bit more. Is your argument that, under your reading of Tiffany and Blackstone, Tony-Rama was wrongly decided by the Florida Supreme Court? Or is it that the concept of customary use stated in Tony-Rama is no longer good law in Florida based on subsequent decisions? Or is it that the customary use doctrine set out in Tony-Rama is unconstitutional? Just trying to figure out the argument.

 

[Shannon Lince]

Trying to understand your position a bit more. Is your argument that, under your reading of Tiffany and Blackstone, Tony-Rama was wrongly decided by the Florida Supreme Court? Or is it that the concept of customary use stated in Tony-Rama is no longer good law in Florida based on subsequent decisions? Or is it that the customary use doctrine set out in Tony-Rama is unconstitutional? Just trying to figure out the argument.

Yes to all.

 

[twinbrew]

Yes to all.

First of all, I would like to say that I appreciate the reasoned discussion we are having on the issues. You seem very knowledgeable on Florida real estate law. Although I hate the strife the issue is creating in the community, it is an interesting one to think through. On whether Tona-Roma was wrongly decided, regardless of how you or I read Tiffany or Blackstone, customary use is currently part of Florida law under that decision and only a reversal from the Supreme Court could change that, right? I wonder what cases you are thinking of that say Tona-Roma is no longer good law in Florida? It seems that two recent federal court decisions think it is still good law. And on the issue of constitutionality, I thought there was at least one ruling (maybe more) that Florida's customary use doctrine would not be an unconstitutional taking so long as it was not adopted pretextually (and I believe there the court said it was not pretextual because all the traditional requirements of custom have to be met). Am I wrong on that?

 

[Shannon Lince]

First of all, I would like to say that I appreciate the reasoned discussion we are having on the issues. You seem very knowledgeable on Florida real estate law. Although I hate the strife the issue is creating in the community, it is an interesting one to think through. On whether Tona-Roma was wrongly decided, regardless of how you or I read Tiffany or Blackstone, customary use is currently part of Florida law under that decision and only a reversal from the Supreme Court could change that, right? I wonder what cases you are thinking of that say Tona-Roma is no longer good law in Florida? It seems that two recent federal court decisions think it is still good law. And on the issue of constitutionality, I thought there was at least one ruling (maybe more) that Florida's customary use doctrine would not be an unconstitutional taking so long as it was not adopted pretextually (and I believe there the court said it was not pretextual because all the traditional requirements of custom have to be met). Am I wrong on that?

T/R is not a law. It established the acceptance of the doctrine and a legal precedent which did not exist previously in FL.

 

[twinbrew]

T/R is not a law. It established the acceptance of the doctrine and a legal precedent which did not exist previously in FL.

I'm not sure I understand your statement that "T/R is not a law." If you are implying that it is not a statute, you are correct. I didn't mean to suggest otherwise. But it is judicial precedent from the highest court in the State of Florida establishing customary use, where the elements are met, as the law of Florida since 1974. So it is part of "the law" under our common law system and stare decisis. That is why the other Florida appellate courts have followed it. And federal courts looking to apply Florida law have cited it as the law of Florida. I think we are saying the same thing but I was confused by your statement that "T/R is not a law."

 

[Lake View Too]

All of this is similar to the trials and tribulations of Donald Trump. When you know the law is not in tune with your agenda, you try to obscure the truth with jargon and jingles. Sometimes you even use abstract fables. They are doing a Guliani: trying to win in the court of public opinion, and it's an epic fail.

 

[Jimmy T]

I'm not sure I understand your statement that "T/R is not a law." If you are implying that it is not a statute, you are correct. I didn't mean to suggest otherwise. But it is judicial precedent from the highest court in the State of Florida establishing customary use, where the elements are met, as the law of Florida since 1974. So it is part of "the law" under our common law system and stare decisis. That is why the other Florida appellate courts have followed it. And federal courts looking to apply Florida law have cited it as the law of Florida. I think we are saying the same thing but I was confused by your statement that "T/R is not a law."

Law is not my profession, but I've always been fascinated by it. I'm really enjoying your respectful and professional comments on this subject. Thank you, and please continue with the discourse!

 

[twinbrew]

Law is not my profession, but I've always been fascinated by it. I'm really enjoying your respectful and professional comments on this subject. Thank you, and please continue with the discourse!

Thanks! It's a very interesting and important issue. My personal view (based on the materials I have reviewed) is that the doctrine of customary use as expressed by the Florida Supreme Court in Tona-Rama is binding Florida law and has been for 44 years. Federal and state courts over the last 44 years (and even as recently as this month) have recognized it as binding Florida law and followed it. That means that every property owner that purchased sandy beach property since 1974 has faced the possibility of customary use at the time they purchased their property if the elements of customary use could be met. This is not something new. Heck, there has even been litigation over whether customary use triggered title insurance policies (it did not) and a plaintiff in a 2007 case even conceded that they weren't challenging the public's right to customary recreational use (only the use of the sandy beach for parking and driving vehicles). There are only three ways that customary use could be abolished: (i) someone takes a case all the way to the Florida Supreme Court and the Florida Supreme Court decides to throw stare decisis out the window and reverse Tona-Roma; (ii) a court finds that customary use is unconstitutional (at least one Florida court has already addressed the issue and said no); or (iii) the Florida Legislature abolishes it by statute. The question of whether counties like Walton can establish customary use by ordinance rather than through a court action was litigated in federal court in Alford and the answer was that they could. The Florida Legislature reversed that outcome by passing HB631 but in doing so reaffirmed and codified the concept of customary use expressed in Tona-Rama (that was the conclusion of the federal court in Blessey). So what is the standard for proving customary use? One Florida appelate court (Trapanier) described it as follows in 2007 - “[W]e do not suggest that the County must prove that cars, horses, or other modes of transportation have customarily traversed and parked on Appelant’s specific parcels of property. Rather, we read Tona-Rama to require proof that the general area of the beach where [the] property is located has customarily been put to such use and that the extent of such customary use on private property is consistent with the public’s claim of right.” So that is what will get litigated as Walton County moves forward. I'm sure others may disagree with my personal view. If there is authority out there to the contrary, happy to consider it and stand corrected.