The Mechanics of the Customary Use: How a Federal Judge's Ruling Reshapes Private Beach Rights in Florida

The most common misconception about Florida beaches is that the sand belongs to everyone. In reality, the state's 1,350 miles of coastline are strictly divided by an invisible, shifting boundary known as the Mean High Water Line. Everything seaward of that line—the wet, packed sand—is held in public trust. Everything landward—the soft, dry sand where beachgoers pitch umbrellas and lay towels—is often privately owned down to the grain.

For decades, this division was largely ignored. Locals and tourists freely traversed the dry sand, and property owners rarely enforced their boundaries. But as coastal real estate values have surged and the physical footprint of the beach has shrunk due to erosion, the dry sand has become a fiercely contested legal battleground.

The conflict hinges on a uniquely Floridian legal concept: the "Customary Use" doctrine. Established by the Florida Supreme Court in 1974, the doctrine dictates that if the public's recreational use of a private dry-sand beach has been "ancient, reasonable, without interruption and free from dispute," the public earns a permanent right to continue that use.

While the premise sounds simple, the mechanics of proving it are anything but. In recent years, federal and state courts have been forced to adjudicate exactly what constitutes "ancient" use, whether a town can legislate it, and how publicly funded beach renourishment alters the equation. The resulting rulings have fractured a statewide doctrine into a complex, parcel-by-parcel patchwork of access rights.

The most straightforward application of customary use occurs when a municipality can produce overwhelming historical evidence. In August 2024, a federal judge sided with the Pinellas County town of Redington Beach, upholding a local ordinance that guaranteed public access to the dry sand.[1]

The town successfully demonstrated that residents and visitors had used the private beaches for walking, sunbathing, and fishing since the municipality's founding in 1935. Because the evidence of continuous, undisputed use was so robust, the court ruled that the property owners never possessed the right to exclude the public in the first place, defeating their claim of an unconstitutional taking.[1]

However, when historical evidence is contested, the doctrine becomes a logistical nightmare. Following a 2018 state law that required local governments to obtain judicial approval before enforcing customary use, Walton County filed a massive lawsuit against 1,194 beachfront property owners to secure public access across its entire coastline.[2]

The litigation dragged on for five years, generating over 6,300 docket entries and costing millions in legal fees. Ultimately, the court did not grant a blanket county-wide easement. Instead, the judge dismissed the claims against owners who actively fought the suit or settled for a narrow 20-foot transit buffer.[2]

The only outright victory for public access in Walton County occurred by default. The court affirmed customary use on exactly 95 parcels—specifically because those unrepresented property owners failed to object or present contrary evidence. The ruling underscored a harsh reality: customary use is no longer a broad community right, but a hyper-local determination decided lot by lot.[2]

The legal landscape is further complicated by the state's ongoing battle against coastal erosion. When a beach washes away, local governments frequently use public tax dollars to pump millions of cubic yards of new sand onto the shore, artificially widening the beach and protecting the upland homes.

For years, municipalities assumed that publicly funded renourishment automatically converted the new dry sand into a public easement under Florida Statute Section 161.141. But a landmark 2026 federal ruling in Palm Beach upended that assumption.[5]

In a closely watched case, a federal judge clarified that trucking in new sand does not manufacture a public easement out of thin air. The statute preserves existing easements, but it does not strip an owner of their private property rights simply because the government added sand to their parcel.[3][5]

The Palm Beach ruling sent shockwaves through coastal governments, confirming that renourishment alone is not a legal giveaway. If a town wants to guarantee public access on a restored private beach, it must still prove the strict historical elements of customary use or formally acquire the land through eminent domain.[5]

Faced with these stringent evidentiary burdens, cities are adapting their legal strategies. In St. Pete Beach, officials recently invoked customary use not as a proactive ordinance, but as an "affirmative defense" against a federal lawsuit filed by waterfront hotels seeking to exclude the public. The city is now crowdsourcing decades-old photographs from residents to build its case.[6]

For public access advocates, these legal hurdles represent a threat to Florida's cultural identity. Organizations like the Surfrider Foundation argue that customary use is a foundational background principle of property law—meaning that the public's right to the beach precedes modern deeds, and that local governments have a duty to defend it.[4]

Conversely, property owners maintain that the right to exclude is the most fundamental element of property ownership. They argue that forcing them to host the general public on their deeded land, without financial compensation, is a clear violation of the Fifth Amendment.[5]

As erosion accelerates and the physical space between the water and the upland homes continues to narrow, these competing interests will only collide with greater frequency. The courts have made it clear that there is no single, sweeping answer to who gets to stand on the sand.

Instead, the future of Florida's beaches will be decided exactly as it is today: through painstaking historical research, parcel-by-parcel litigation, and a delicate balancing act between the public's ancient customs and the modern realities of private property.