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Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
For most BPO's, their position is one almost all property owners share: BPO's purchased property with borders and they have a full bundle of rights and quiet enjoyment with their property, just like every other Walton county property owner. They want the same rights you enjoy with your property.

For BPO's this entire decade long campaign to overturn private beaches is about protecting their property rights, not about keeping locals from using the beach.

1. BPO's have a full bundle of rights. There are no limitations stated on their deeds. There is no blanket public access easement across these properties. The four corners of the deed do not limit the bundle of rights.
2. The property purchased has boundary to the MHWL.
3. The county has recognized private property beach ownership for decades in thousands of documented examples.
4. Most BPO's have no issue with locals use of their property, however most BPO's reject that their property should be forced to bear the full burden of the public and have no say in who uses their property.
5. There's was no legal challenge to BPO's decades of property ownership and rights until the "customary use" legal maneuver started being discussed at the BCC level with Larry Jones and Attorney David Theriaque sometime in the 2000's. Destin tried and abandoned CU in 2002, as the AG's office stated it had to be litigated on a per parcel basis.


The responses to BPO's:
1. The only reason you have a deed to the MHWL was to prevent someone from building in front of you.
2. You only purchased the view, smells and sounds.
3. Because the dry sand is not assessed, you don't pay taxes on it, and you don't really own it.
4. Beach dry sand property is worthless.
5. You knew when you bought your property that the public used it openly and freely.
6. No one owns the beach.
7. Access and use are two distinct concepts. Private access is morally good. Private use is morally wrong.
8. The MHWL moves and so you don't really own the property.
9. Most beach property was obtained illegally by quiet title claims stealing public beach property from the county.
10. Walton county public has always had "customary use".
11. Privatizing beaches is wrong (as if "privatizing" is a new concept).
12. The new law made the public beaches private.
13. Private beach really only ever meant secluded beach.
14. We didn't have any issue until beach front owners put up signs and ropes.
15. People paid $100 for public property and made it private.
16. Deeds and plats have been forged, altered, tampered from the original deeds.
17. BPO's are greedy, elitist, selfish and not part of Walton county community. BPO's are last in the order of protection of their rights: tourists first, beach vendors second, everyone else third, property owners last.
18. Mike Huckabee is responsible for the mess the community is in.
19. There never were private beaches in Walton county until this last round of new owners.
20. Customary use is not about property rights - you still own your property.
 

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Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
And for those who keep repeating that Customary Use is not a taking...there is intangible taking, as well as inverse condemnation.

"When a governmental actor physically occupies or invades a property right in a way that substantially interferes with the owner's use and enjoyment of the property, a de-facto taking results" Hall 355 Or at 522.
 

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FloridaBeachBum

Beach Fanatic
Feb 9, 2017
463
112
Santa Rosa Beach
I can already here the customary users - IF owners do not prevail, owners never had the right and is not a government taking. But that is why ancient English common law customary use is repugnant and inconsistent with the US Constitution.
 
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Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
A BPO:
"If it’s always been customary use then why create public beach areas? Just build parking lots."
"Why won’t the county attorney agree to indemnify property owners from claims arising from the collection of trash?"
"Why not offer to reimburse all bfo’s who have spent money on renourishment of the beach?"
"If CU is not a taking then why can’t I start a business using the beach as revenue (the county collects fees for weddings, beach fires...etc)."

Another BPO:
"The big push is about money. Have to have CU or the county will go broke, etc. The thing is CU was only 1 summer and part of another. I wish that narrative could be challenged with facts. I tried once to no avail. And in closing.. Who in their right mind wants 3+ million tourists descending on 30a.. and more projected to come. Sounds like the county is slowly committing suicide."
 
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BlueMtnBeachVagrant

Beach Fanatic
Jun 20, 2005
1,305
386
Very, very interesting to see this letter (thanks for posting) as I just had talk with another BFO regarding a slanted for sale listing: “...direct public beach access via private walkover". I am confident the agent fully knows that today, the beach for that property is private.

If anyone ever had a doubt that some agents might be less than forthcoming for personal reasons or gains, doubt no more.

Cudos to Blake Morar for condemning ECAR’s official position in the customary use issue. Might he lose a little money because of this letter? Possibly. I may now consider their services.

Definitely will never, ever use the surfer dude’s company who’s buddies with the master maker and marketeer of mai tais to the masses.

Remember who really financially benefits from uncontrolled growth at the expense of BFOs should customary use prevail: existing businesses AND the county. This includes developers, restaraunteers, real estate agents, beach vendors, just about everyone with a business in Walton County.

Heck I’d support CU if I didn’t own beach front except I’d be going against what I know to be one of core values of the U.S. Constitution - private property rights. So I never will.
 

Shannon Lince

Beach Lover
Sep 9, 2018
103
97
Florida
And to no one in particular, Customary Use (as it is being defined in the court of popular opinion) is central to property rights. It is granting a right to the public to use someone else's property. In this case, more than 5,000 property owners.

Three states are commonly cited as having public right of use easements to beach property. Oregon, Hawaii, and Texas. But the method used was different in each one. Hawaii’s custom was not through the English common law of custom but the following of Hawaiian National Usage - native custom. Texas was through “public easement”, Open Beaches Act, state law in 1959 and not through the doctrine of custom.

Florida’s “Customary Use” is a property right of use, a customary easement, following a “new-doctrine” of custom originated in Oregon in 1969. The Oregon ruling has been widely criticized as judicial activism, and not following the doctrine of custom but instead creating a new doctrine.

By granting that right of use to the public, Customary Use is at the same time invading the owner's right of control, enjoyment and removing the owner's right of exclusion.

There are four property rights which will be affected by Customary Use:

1. Possession. The loss of the right of exclusion.
2. Control. The county rather than the owner, will have control on who can use and what uses can be exercised by third parties without interference by the owner.
3. Exclusion. The owner will lose the right to exclude any member of the public (has already been lost by the actions of the local Sheriff unwilling to enforce trespassing law).
4. Enjoyment. The owner being burdened by the public, will diminish the right of enjoyment.

For those who state the owner never had the right of exclusion (like Larry Jones has incorrectly instructed the public for years) and “customary use” has been the status quo forever and is a predetermined right --- this is a going back in time machine granting of a public right which has not yet been determined by a court. Judge Rodgers and other judges have ruled that the doctrine cannot exist absent a judicial determination. The Reynolds and Trepanier courts already ruled that Tona Rama did not grant the right to all of Florida, only to the land in question in the case and required judicial determination to grant the right to other parcels. Selectively reading and misinterpreting Tona Rama to promote the customary use "right" narrative has become a sport for customary use advocates.

This was the main thrust of the Customary Use section of FL 163.035, to mandate local governments follow the judicial requirements of Customary Use that was already established judicial precedent. HB631 did not create any new rights other than to codify a process which the courts had already established. HB631 simply restated terms and property rights which had already existed well before the legislation.

Yet another version of Customary Use, granting a public right of use was created by Walton county and only existed in Walton county for a little over one year in the form of a beach ordinance. The ordinance has no value in the discussion other than a historical footnote.

Customary Use also invades an owner's covenant of Quiet Enjoyment obtained with a Warranty Deed.

Customary use, besides imposing the public burden, imposes a liability onto the owner, which cannot be mitigated through insurance.

The US Constitution 5th and 14th amendments, as well as the United Nations Universal Declaration of Human Rights,
Article 17
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.

The right to own property and not be arbitrarily deprived of property is a documented universal human right.
 

BlueMtnBeachVagrant

Beach Fanatic
Jun 20, 2005
1,305
386
.....Customary use, besides imposing the public burden, imposes a liability onto the owner, which cannot be mitigated through insurance.

So a friend tried to contact the county attorney and at least one of the commissioners regarding liability should customary use prevail. Neither responded as to who is liable if a public beach goer is injured on “private property”.

He informed me that BFOs will not be able obtain liability insurance on their beach property should customary use prevail because the private property owner could not exclude the public.

The county owes EVERYONE an immediate and CLEAR explanation as to who bears liability on “private beaches” that would become open to the public via customary use.

Maybe the professionals at ECAR could chime in with their infinite wisdom since they normally must disclose things like this. We did have customary use for over a year. What did they tell purchasers of private beach front property regarding liability during that period? I’ll bet nothing.
 

twinbrew

Beach Comber
Sep 17, 2018
16
16
Smyrna
I believe strongly in property rights as well, but I also understand that real property law is complicated and property rights vested in owners are not always absolute and unqualified. I'm genuinely interested in the views of BFO owners. Which leads me to ask 2 questions of BFO's. For your personal parcel, has the public never used your dry sand area for recreational purposes during the time you owned it (and you can exclude the short period of CU by ordinance). In other words, do you believe your dry sand has always been treated as private? Second, if CU was defeated and I showed up by myself with a fishing rod and a chair at 6:00 a.m. and sat 10 feet out of the wet sand on your property, would your intention be to ask me to leave? I expect I'll get a cavalcade of responses that you want the right to tell me to leave regardless of whether you exercise it, but I'm asking what your approach would be as a pure matter of personal interaction. Is that what you would do?
 

FloridaBeachBum

Beach Fanatic
Feb 9, 2017
463
112
Santa Rosa Beach
Is Walton so different to this article?
Walton customary use is ONLY about property rights and RESPECTING property rights. Property rights are not some "angle" or legal trick. The founders of the Constitution emphasized property rights and due process and respecting property rights and since 1776 are the key to American prosperity.
If you think beachfront owners did not earn their property or pay their taxes on it; please cast the first stone of criticism.

May 2007 How Property Ownership Changes Your World View
Harvard Buisness School by Julia Hanna
When Argentine squatters were granted property title it changed the way they viewed the world. HBS professor Rafael Di Tella discusses his research into how property ownership affects our beliefs and also our attitudes toward capitalism.

What happens when a person owns property? Aside from the well-established financial benefits of equity and potential access to credit, there is the equally strong pull of the American Dream and everything it suggests—the idea that through hard work and determination, it's possible to get ahead, own a home, [own beachfront property,] and achieve some level of success, security, and happiness.

But how does this vision change in parts of the world where property rights, if they are present at all, are threatened by weak law enforcement, corruption, crime, and arbitrary government policy? In a recent paper (http://www.people.hbs.edu/rditella/papers/QJEBeliefs.pdf) published in the Quarterly Journal of Economics, HBS professor Rafael Di Tella, Sebastian Galiani of the University of Washington, St. Louis, and Ernesto Schargrodsky of the Universidad Torcuato Di Tella delve into this question by comparing the beliefs of two groups of squatters living in the Solano neighborhood on the outskirts of Buenos Aires, Argentina.

What the scholars found could be the start of a better understanding of why capitalism remains unpopular through large swaths of the world—particularly in areas where property rights are weak or nonexistent.

In an unusual set-up that Di Tella describes as "a natural experiment," about 1,800 landless families (organized by a Catholic priest) occupied the area in 1981, believing it was owned by the state. In fact, it was made up of privately held tracts of land belonging to 13 owners. Over the years, the squatters resisted several eviction attempts, until a change in government in 1984 resulted in a state proposal to pay off the owners and allocate the land to the squatters. Each owner was given the option of accepting the deal or suing to obtain higher compensation. By 1998, 9 of the owners had settled, and the tract of land was transferred to the squatters. With the remaining 4 lawsuits still pending, 62 percent of the squatters now hold title to their land, while 38 percent do not.

As a result, squatters who enjoyed the security of property rights existed in proximity to those with no legal claim to the land on which they lived. For Di Tella and his coauthors, the situation presented the ideal opportunity to research the beliefs of those who hold property rights versus those who do not, all other conditions being equal.

"In the United States, there are few dramatic policy changes that will create situations like this," Di Tella says. "In Latin America, you can observe things that you would not in a more stable environment."

Gauging Beliefs
The researchers asked survey questions to gauge the squatters' stance on beliefs common to a capitalist society. For example, did the squatters agree that it is possible to be successful on one's own, or did they think it necessary to have a large group supporting one another? To what degree did they believe money was important to be happy? Do people who put effort into working end up better, worse, or much worse than those who do not? Finally, did the squatters believe that other people could be trusted?

Di Tella and his coauthors found that squatters with land titles believed individual achievement is possible by a margin of 31 percent over those who did not hold title to their land; the margin for those with the materialist view that money is important to be happy was 34 percent; and 17 percent more squatters with titles believed that other people could be trusted. The only question that did not show a significant difference related to the meritocratic belief that effort pays off—in this case, the majority of both groups believe that this is true.

When Di Tella benchmarked these results against a sample of residents from the Buenos Aires metropolitan area with generally higher income and education levels, their responses tallied closely to the beliefs of squatters who hold titles. This showed the importance of property rights in closing the belief gap between a group of very poor squatters and the general population.

Changing Lives
"How is it that property changes peoples' lives?" asks Di Tella. "In developing countries, there are many claims or challenges to property ownership, which generate differences in the beliefs that people hold. Important research has been done to demonstrate the material effects of property ownership, like increased access to credit.

"However, I've been more interested in looking at the immaterial effects of how that influences people's view of the world and, by extension, how those beliefs may or may not foster development."

Capitalism, Di Tella says, is not popular in most parts of the world—and in Latin America, the backlash against free markets has reached epidemic proportions.

"Why is capitalism so unattractive outside of the United States and other rich countries? This paper shows that secure property rights are one part of the answer," he says. "If people don't own property, they don't believe that they can build on their success."

How is it that property changes people's lives?
Two other strands of Di Tella's research also point to how beliefs affect attitudes toward capitalism. In one, he notes that because the economies of poorer countries are often dependent on volatile resources such as oil and minerals (which are often controlled by a relatively small number of individuals) it is in fact true that hard work and effort don't pay off for the vast majority of people.

"As a result, voters favor high taxes," Di Tella says. "It's like a tax in a casino—people believe that it should be high because so little effort has been expended in winning the money."

Corruption is another issue. "If you perceive the system to be illegitimate, the tendency is to demand justice through increased government intervention and policies," Di Tella observes. These three factors, taken together, create an unfriendly environment for capitalism [and beachfront ownership rights].

"I'm concerned about beliefs and how they are formed because I think that the rejection of pro-market reforms in Latin America or Eastern Europe or Africa is not related to economic interests, as most economists claim, but to the way that people see the world," says Di Tella. "We think it's important to understand what causes these changes in beliefs [private property ownership rights] because they form the underpinnings of capitalism and have a profound effect on development."
 
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