LTC 178-2018 House Bill 631 Impact on Public Beach Access(1)JA,\A.I BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
Jimmy L. Morales, City Manager
Tel: 305-673-7010 , Fax: 305-673-7782
NO. LTC # 178-2018
TO:
FROM: Jimmy L. Morales, City Mana•er
DATE: April 5, 2018
SUBJECT: House Bill 631 Impact on Public Beach Access
LETTER TO COMMISSION
Mayor Dan Gelber and Members of the City C ;Qnmission
In March, Governor Rick Scott signed House Bill 631 (attached) into law. This bill establishes a
process for state and local governments to affirm the existence of a recreational customary use,
on private beachfront property above the mean high-water line through judicial determination. I
am happy to report that this bill does not impact public or private property in Miami Beach.
It is estimated that 60 percent of Florida's beaches are privately owned. However, in Miami Beach
the entire beachfront is public and owned by the State of Florida. This law will only impact seaside
municipalities where private properties own up to the mean high-water, and the public is currently
using the beach face as a recreational customary use.
In 1961, the State of Florida enacted the Shore and Beach Preservation Act to restore and
maintain critically eroded beaches. The Act authorized the Board of Trustees of the Internal
Improvement Trust Fund to establish a fixed erosion control line to replace the fluctuating mean
high-water line. The mean high-water line was formerly considered the boundary between the
upland owner and the State. By establishing the erosion control line, the county, state and federal
government have been able to fund the renourishment of the beaches in our city. In Miami Beach,
the erosion control line runs along the western side of the dune and beachwalk system.
Should you have any questions, please contact Elizabeth Wheaton at (305) 673-7010.
Attachment: HB 631
SMT/ESW
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An act relating to the possession of real property;
amending s. 66.021, F.S.; authorizing a person with a
superior right to possession of real property to
recover possession by ejectment; declaring that
circuit courts have exclusive jurisdiction; providing
that a plaintiff is not required to provide any
presuit notice or demand to a defendant; requiring
that copies of instruments be attached to a complaint
or answer under certain circumstances; requiring a
statement to list certain details; providing for
construction; amending s. 82.01, F.S.; redefining the
terms "unlawful entry" and "forcible entry"; defining
the terms "real property," "record titleholder," and
"unlawful detention"; amending s. 82.02, F.S.;
exempting possession of real property under part II of
ch. 83, F.S., and under chs. 513 and 723, F.S.;
amending s. 82.03, F.S.; providing that a person
entitled to possession of real property has a cause of
action to regain possession from another person who
obtained possession of real property by forcible
entry, unlawful entry, or unlawful detainer; providing
that a person entitled to possession is not required
to give a defendant presuit notice; requiring the
court to award the plaintiff extra damages if a
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defendant acted in a willful and knowingly wrongful
manner; authorizing bifurcation of actions for
possession and damages; requiring that an action be
brought by summary procedure; requiring the court to
advance the cause on the calendar; transferring,
renumbering, and amending s. 82.045, F.S.; conforming
provisions to changes made by the act; amending s.
82.04, F.S.; requiring that the court determine the
right of possession and damages; prohibiting the court
from determining question of title unless necessary;
amending s. 82.05, F.S.; requiring that the summons
and complaint be attached to the real property after
two unsuccessful attempts to serve a defendant;
requiring a plaintiff to provide the clerk of the
court with prestamped envelopes and additional copies
of the summons and complaint if the defendant is
served by attaching the summons and complaint to the
real property; requiring the clerk to immediately mail
copies of the summons and complaint and note the fact
of mailing in the docket; specifying that service is
effective on the date of posting or mailing; requiring
that 5 days elapse after the date of service before
the entry of a judgment; amending s. 82.091, F.S.;
providing requirements after a judgment is entered for
the plaintiff or the defendant; amending s. 82.101,
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F.S.; adding quiet title to the types of future
actions for which a judgment is not conclusive as to
certain facts; providing that the judgment may be
superseded by a subsequent judgment; creating s.
163.035, F.S.; defining the term "governmental
entity"; prohibiting a governmental entity from
adopting or keeping in effect certain ordinances and
rules based upon customary use; providing an
exception; requiring a governmental entity seeking to
affirm the existence of a recreational customary use
on private property to follow certain procedures;
providing notice requirements for a governmental
entity seeking to affirm such recreational customary
use; requiring the governmental entity to file a
specified complaint with a certain circuit court
within a certain time; providing notice requirements
for the filing of such complaint; specifying that
proceedings resulting from such complaint are de novo;
requiring the court to consider specific factors when
determining whether a recreational customary use
exists; specifying that the governmental entity has
the burden of proof; specifying that an owner of a
parcel of property subject to the complaint has the
right to intervene in the proceeding; providing
applicability; repealing s. 82.061, F.S., relating to
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76 service of process; repealing s. 82.071, F.S.,
77 relating to evidence at trial as to damages; repealing
78 s. 82.081, F.S., relating to trial verdict forms;
79 providing an effective date.
80
81 Be It Enacted by the Legislature of the State of Florida:
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83 Section 1. Section 66.021, Florida Statutes, is amended to
84 read:
85 66.021 Ejectment Procedure.
86 (1) RIGHT OF ACTION.—A person with a superior right to
87 possession of real property may maintain an action of ejectment
88 to recover possession of the property.
89 (2) JURISDICTION.—Circuit courts have exclusive
90 jurisdiction in an action of ejectment.
91 (3) NOTICE.—A plaintiff may not be required to provide any
92 presuit notice or presuit demand to a defendant as a condition
93 to maintaining an action under this section.
94 (4)(1) LANDLORD NOT A DEFENDANT.—When it appears before
95 trial that a defendant in an action of ejectment is in
96 possession as a tenant and that his or her landlord is not a
97 party, the landlord must shall be made a party before further
98 proceeding unless otherwise ordered by the court.
99 (5)(2) DEFENSE MAY BE LIMITED.—A defendant in an action of
100 ejectment may limit his or her defense to a part of the property
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mentioned in the complaint, describing such part with reasonable
certainty.
(6)(3) WRIT OF POSSESSION; EXECUTION TO BE JOINT OR
SEVERAL.—When plaintiff recovers in an action of ejectment, he
or she may have one writ for possession and for,— damages and
costs or, at his or her election if thc plaintiff elects, may
have separate writs for possession and for damages and costs.
(7)-(-4-)- CHAIN OF TITLE.—The Plaintiff with his or hcr
complaint and the defendant with his or hcr answer must include
shall serve a statement setting forth, chronologically, the
chain of title upon which the party on which he or she will rely
at trial. Copies of each instrument identified in the statement
must be attached to the complaint or answer. If any part f thc
chain f title is recorded, The statement must include shall oct
f rth the names of the grantors and the grantees, the date that
each instrument was recorded, and the book and page or the
instrument number for each recorded instrument f thc roc rd
there f; if an unrecorded instrument is relied n, a c py shall
bc attached. The court may require thc original to bc submitted
t thc opposite party for inspection. If a the party relies on a
claim or right without color of title, the statement must shall
specify how and when the claim originated and the facts on which
the claim is based. If defendant and plaintiff claim under a
common source, the statement need not deraign title before the
common source.
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126 (8)(5) TESTING SUFFICIENCY.—If either party seeks wants to
127 test the legal sufficiency of any instrument or court proceeding
128 in the chain of title of the opposite party, the party must
129 shall do so before trial by motion setting up his or her
130 objections with a copy of the instrument or court proceedings
131 attached. The motion must shall be disposed of before trial. If
132 either party determines that he or she will be unable to
133 maintain his or her claim by reason of the order, that party may
134 so state in the record and final judgment shall be entered for
135 the opposing opp sits party.
136 (9) OPERATION.—This section is cumulative to other
137 existing remedies and may not be construed to limit other
138 remedies that are available under the laws of this state.
139 Section 2. Section 82.01, Florida Statutes, is amended to
140 read:
141 82.01 Definitions "Unlawful cntry and forciblc cntry"
142 dcfincd.—As used in this chapter, the term:
143 (1) "Forcible entry" means entering into and taking
144 possession of real property with force, in a manner that is not
145 peaceable, easy, or open, even if such entry is authorized by a
146 person entitled to possession of the real property and the
147 possession is only temporary or applies only to a portion of the
148 real property.
149 (2) "Real property" means land or any existing permanent
150 or temporary building or structure thereon, and any attachments
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generally held out for the use of persons in possession of the
real property.
(3) "Record titleholder" means a person who holds title to
real property as evidenced by an instrument recorded in the
public records of the county in which the real property is
located.
(4) "Unlawful detention" means possessing real property,
even if the possession is temporary or applies only to a portion
of the real property, without the consent of a person entitled
to possession of the real property or after the withdrawal of
consent by such person.
(5) "Unlawful entry" means the entry into and possessing
of real property, even if the possession is temporary or for a
portion of the real property, when such entry is not authorized
by law or consented to by a person entitled to possession of the
real property N pero n shall cntcr into any lands or tenements
cxccpt whcn cntry is given by law, n r shall any person, when
entry is given by law, enter with str ng hand or with multitude
f pc plc, but only in a peaceable, ca y and opcn manncr.
Section 3. Section 82.02, Florida Statutes, is amended to
read:
82.02 Applicability "Unlawful cntry and unlawful
detention" defined.
(1) This chapter does not apply to residential tenancies
under part II of chapter 83 No person who enters without consent
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in a peaceable, easy and opcn manner into any lands r tenements
shall hold thcm afterwards against thc consent f thc party
cntiticd to possession.
(2) This chapter does not apply to the possession of real
property under chapter 513 or chapter 723 This section shall not
apply with rcgard to residential tenancies.
Section 4. Section 82.03, Florida Statutes, is amended to
read:
82.03 Remedies Remedy for unlawful cntry and forcible
cntry.—
(1) A person entitled to possession of real property,
including constructive possession by a record titleholder, has a
cause of action against a person who obtained possession of that
real property by forcible entry, unlawful entry, or unlawful
detention and may recover possession and damages. The person
entitled to possession is not required to notify the prospective
defendant before filing the action.
(2) If the court finds that the entry or detention by the
defendant is willful and knowingly wrongful, the court must
award the plaintiff damages equal to double the reasonable
rental value of the real property from the beginning of the
forcible entry, unlawful entry, or unlawful detention until
possession is delivered to the plaintiff. The plaintiff may also
recover other damages, including, but not limited to, damages
for waste.
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(3) Actions for possession and damages may be bifurcated.
(4) All actions under this chapter must be brought by
summary procedure as provided in s. 51.011, and the court shall
advance the cause on the calendar If any pers n cntcrs r has
r if any pers n cntcrs or has entered into any lands or
tcncmcnts with strong hand or with multitude of people, even
when cntry is given by law, thc party turned out or dcprivcd of
p sacssi n by thc unlawful r f rciblc cntry, by whatcvcr right
r title thc party hcld p sscssion, r whatcvcr estate thc party
hcld r claimed in thc lands r tcncmcnts f which he r she was
diop sscsscd, is cntiticd t thc summary proccdurc undcr s.
51.011 within 3 years thcrcaftcr.
Section 5. Section 82.045, Florida Statutes, is
transferred, renumbered as section 82.035, Florida Statutes, and
amended to read:
82.035 82.045 Remedy for unlawful detention by a transient
occupant of residential property.—
(1) As used in this section, the term "transient occupant"
means a person whose residency in real property a dwelling
intended for residential use has occurred for a brief length of
time, is not pursuant to a lease, and whose occupancy was
intended as transient in nature.
(a) Factors that establish that a person is a transient
occupant include, but are not limited to:
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1. The person does not have an ownership interest,
financial interest, or leasehold interest in the property
entitling him or her to occupancy of the property.
2. The person does not have any property utility
subscriptions.
3. The person does not use the property address as an
address of record with any governmental agency, including, but
not limited to, the Department of Highway Safety and Motor
Vehicles or the supervisor of elections.
4. The person does not receive mail at the property.
5. The person pays minimal or no rent for his or her stay
at the property.
6. The person does not have a designated space of his or
her own, such as a room, at the property.
7. The person has minimal, if any, personal belongings at
the property.
8. The person has an apparent permanent residence
elsewhere.
(b) Minor contributions made for the purchase of household
goods, or minor contributions towards other household expenses,
do not establish residency.
(2) A transient occupant unlawfully detains a residential
property if the transient occupant remains in occupancy of the
residential property after the party entitled to possession of
the property has directed the transient occupant to leave.
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(3) Any law enforcement officer may, upon receipt of a
sworn affidavit of the party entitled to possession that a
person who is a transient occupant is unlawfully detaining
residential property, direct a transient occupant to surrender
possession of residential property. The sworn affidavit must set
forth the facts, including the applicable factors listed in
paragraph (1)(a), which establish that a transient occupant is
unlawfully detaining residential property.
(a) A person who fails to comply with the direction of the
law enforcement officer to surrender possession or occupancy
violates s. 810.08. In any prosecution of a violation of s.
810.08 related to this section, whether the defendant was
properly classified as a transient occupant is not an element of
the offense, the state is not required to prove that the
defendant was in fact a transient occupant, and the defendant's
status as a permanent resident is not an affirmative defense.
(b) A person wrongfully removed pursuant to this
subsection has a cause of action for wrongful removal against
the person who requested the removal, and may recover injunctive
relief and compensatory damages. However, a wrongfully removed
person does not have a cause of action against the law
enforcement officer or the agency employing the law enforcement
officer absent a showing of bad faith by the law enforcement
officer.
(4) A party entitled to possession of real property a
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dwelling has a cause of action for unlawful detainer against a
transient occupant pursuant to s. 82.03 s. 82.04-. The party
entitled to possession is not required to notify the transient
occupant before filing the action. If the court finds that the
defendant is not a transient occupant but is instead a tenant of
residential property governed by part II of chapter 83, the
court may not dismiss the action without first allowing the
plaintiff to give the transient occupant the notice required by
that part and to thereafter amend the complaint to pursue
eviction under that part.
Section 6. Section 82.04, Florida Statutes, is amended to
read:
82.04 Questions involved in this proceeding for
. The court shall determine only the right of
possession and any damages. Unless it is necessary to determine
the right of possession or the record titleholder, the court may
not determine the question of title.
(1) If any person enters or has cntcrcd in a peaceable
manner into any lands or tenements when thc entry is lawful and
after thc expiration of thc person's right continues to hold
thc party c cntiticd to p ssessi n is cntiticd to thc summary
pr ccdurc under o. 51.011, at any timc within 3 ycars aftcr thc
possession has bccn withheld from thc party against his or hcr
c nscnt.
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301 (2) This sccti n shall n t apply with rcgard t
302 residcntial tcnancics.
303 Section 7. Section 82.05, Florida Statutes, is amended to
304 read:
305 82.05 Service of process Qucsti ns involvcd in this
306 procccding.
307 (1) After at least two attempts to obtain service as
308 provided by law, if the defendant cannot be found in the county
309 in which the action is pending and either the defendant does not
310 have a usual place of abode in the county or there is no person
311 15 years of age or older residing at the defendant's usual place
312 of abode in the county, the sheriff must serve the summons and
313 complaint by attaching them to some conspicuous part of the real
314 property involved in the proceeding. The minimum amount of time
315 allowed between the two attempts to obtain service is 6 hours.
316 (2) If a plaintiff causes, or anticipates causing, a
317 defendant to be served with a summons and complaint solely by
318 attaching them to some conspicuous part of real property
319 involved in the proceeding, the plaintiff must provide the clerk
320 of the court with two additional copies of the summons and the
321 complaint and two prestamped envelopes addressed to the
322 defendant. One envelope must be addressed to the defendant's
323 residence, if known. The second envelope must be addressed to
324 the defendant's last known business address, if known. The clerk
325 of the court shall immediately mail the copies of the summons
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326 and complaint by first-class mail, note the fact of mailing in
327 the docket, and file a certificate in the court file of the fact
328 and date of mailing. Service is effective on the date of posting
329 or mailing, whichever occurs later, and at least 5 days must
330 have elapsed after the date of service before a final judgment
331 for removal of the defendant may be entered No qucsti n of
332 title, but only right of possession and damages, is involved in
333 thc action.
334 Section 8. Section 82.091, Florida Statutes, is amended to
335 read:
336 82.091 Judgment and execution. -
337 (1) If the court enters a judgment for the plaintiff, the
338 verdict is in favor of plaintiff, thc court shall cntcr judgment
339 that plaintiff shall recover possession of the real property
340 that he or she is entitled to and described in thc complaint
341 with his or her damages and costs. The court, and shall award a
342 writ of possession to be executed without delay and execution
343 for the plaintiff's damages and costs.
344 (2) If the court enters a judgment for the defendant, the
345 court shall verdict is for defendant, thc court shall cntcr
346 judgment against plaintiff dismissing the complaint and order
347 that the defendant recover costs.
348 Section 9. Section 82.101, Florida Statutes, is amended to
349 read:
350 82.101 Effect of judgment.—No judgment rendered either for
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351 the plaintiff or the defendant bars any action of trespass for
352 injury to the real property or ejectment between the same
353 parties respecting the same real property. A judgment is not
354 conclusive as to N vcrdict is c nclusivc f the facts therein
355 f und in any future action for trespass, ejectment, or quiet
356 title. A judgment rendered either for the plaintiff or the
357 defendant pursuant to this chapter may be superseded, in whole
358 or in part, by a subsequent judgment in an action for trespass
359 for injury to the real property, ejectment, or quiet title
360 involving the same parties with respect to the same real .
361 property or cjcctmcnt.
362 Section 10. Section 163.035, Florida Statutes, is created
363 to read:
364 163.035 Establishment of recreational customary use. -
365 (1) DEFINITION.—The term "governmental entity" includes an
366 agency of the state, a regional or a local government created by
367 the State Constitution or by general or special act, any county
368 or municipality, or any other entity that independently
369 exercises governmental authority.
370 (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A
371 governmental entity may not adopt or keep in effect an ordinance
372 or rule that finds, determines, relies on, or is based upon
373 customary use of any portion of a beach above the mean high -
374 water line, as defined in s. 177.27, unless such ordinance or
375 rule is based on a judicial declaration affirming recreational
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customary use on such beach.
(3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON
PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity
that seeks to affirm the existence of a recreational customary
use on private property must follow the procedures set forth in
this subsection.
(a) Notice. -The governing board of a governmental entity
must, at a public hearing, adopt a formal notice of intent to
affirm the existence of a recreational customary use on private
property. The notice of intent must specifically identify the
following:
1. The specific parcels of property, or the specific
portions thereof, upon which a customary use affirmation is
sought;
2. The detailed, specific, and individual use or uses of
the parcels of property to which a customary use affirmation is
sought; and
3. Each source of evidence that the governmental entity
would rely upon to prove a recreational customary use has been
ancient, reasonable, without interruption, and free from
dispute.
The governmental entity must provide notice of the public
hearing to the owner of each parcel of property subject to the
notice of intent at the address reflected in the county property
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appraiser's records no later than 30 days before the public
meeting. Such notice must be provided by certified mail with
return receipt requested, publication in a newspaper of general
circulation in the area where the parcels of property are
located, and posting on the governmental entity's website.
(b) Judicial determination.—
1. Within 60 days after the adoption of the notice of
intent at the public hearing, the governmental entity must file
a Complaint for Declaration of Recreational Customary Use with
the circuit court in the county in which the properties subject
to the notice of intent are located. The governmental entity
must provide notice of the filing of the complaint to the owner
of each parcel of property subject to the complaint in the same
manner as is required for the notice of intent in paragraph (a).
The notice must allow the owner receiving the notice to
intervene in the proceeding within 45 days after receiving the
notice. The governmental entity must provide verification of the
service of the notice to the property owners required in this
paragraph to the court so that the court may establish a
schedule for the judicial proceedings.
2. All proceedings under this paragraph shall be de novo.
The court must determine whether the evidence presented
demonstrates that the recreational customary use for the use or
uses identified in the notice of intent have been ancient,
reasonable, without interruption, and free from dispute. There
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FLORIDA HOUSE OF REPRESENTATIVES
ENROLLED
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is no presumption regarding the existence of a recreational
customary use with respect to any parcel of property, and the
governmental entity has the burden of proof to show that a
recreational customary use exists. An owner of a parcel of
property that is subject to the complaint has the right to
intervene as a party defendant in such proceeding.
(4) APPLICABILITY.—This section does not apply to a
governmental entity with an ordinance or rule that was adopted
and in effect on or before January 1, 2016, and does not deprive
a governmental entity from raising customary use as an
affirmative defense in any proceeding challenging an ordinance
or rule adopted before July 1, 2018.
Section 11. Section 82.061, Florida Statutes, is repealed.
Section 12. Section 82.071, Florida Statutes, is repealed.
Section 13. Section 82.081, Florida Statutes, is repealed.
Section 14. This act shall take effect July 1, 2018.
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