Are Private Beaches Really Private?

As the days get warmer and beautiful weather abounds, we flock to the beaches to enjoy some fun in the sun. There is a contentious aspect to this, however, one that makes for an unpleasant beach experience. There has been an increased tendency with private beach owners to have members of the public thrown off beaches by private security. The legality behind this, however, is a hotly debated topic.

In most states of the US – barring Maine – private beaches are only considered private up to the high water mark. The beach area from the high water mark to the water is, therefore, public land. In some instances, such as in Maine, private ownership extends to the low water mark.

Generally speaking, few instances exist where individuals can own an entire beach right down to the water’s edge. While this is the case on paper, it does not stop private beach owners from attempting to prevent public access, even to the parts of the coast that are technically public domain.

Are Private Beaches Really Private?

Across the US, especially in Florida, where countless beaches can be found and the climate allows for year-round enjoyment of them, numerous hotels, resorts, and private homes claim ownership of the beach situated directly in front of their land.

Many of these homes or resorts have cordoned off their own section of the beach and hired private security to ensure nobody trespasses on their private beach. While the beach may be private to a certain degree, certain laws in most states prohibit ownership of an entire beach right up to the water’s edge.

The law in most states dictates that ownership of the beach extends only up to the high water mark. This line is determined as the average tide height taken over nineteen years. Because this line cannot necessarily be seen on a beach and tends to move with time, it can be very difficult for anybody to know where it is.

While ordinary property lines are properly defined boundaries that have been surveyed down to the nearest millimeter, shorelines effectively fluctuate daily according to the tide and move yearly according to the seasons.

Unsightly markings such as fencing are generally frowned upon when it comes to showing the boundary of a private beach. So, the general public will have difficulty determining where the private land ends and the public land begins.

Because the section of the beach from the high tide mark to the water’s edge (low water mark) is generally considered public land, anybody has permission to move laterally along the beach as long as they remain within the intertidal area.

This is generally easy to identify as it is the belt of sand that generally remains wet throughout the day. The completely dry sand is generally above the high water mark, meaning that it could be private land.

If you happen to be walking across a beach in the intertidal area, know that you are well within your rights to do so (unless you’re in a state with different rules, of course).

It can become contentious, however, because it has never really been made clear whether the general public is permitted to cross private property to access the section of the beach that is deemed public property.

Private Beaches In Maine

The rules discussed above apply to the majority of US states. However, there are certain areas in the US – as well as the rest of the world – where the rules differ drastically when it comes to private beach access.

In Maine, the ownership of beaches extends all the way down to the low water mark. This means that the intertidal area, usually considered public domain in the rest of the US, remains private property.

While the water itself remains freely accessible to any members of the general public, setting foot on land implies trespassing. This means that while you are free to swim in the ocean in front of a private beach, you may not make your way onto the land adjacent.

There is a rule, however, that states the public may still access the intertidal area in Maine for certain activities if required. Despite its designation as private land, the intertidal area of a private beach in Maine may be accessed by the public for the purposes of fishing, navigation, and a small number of other activities.

Private Beach Concessions

There are specific ways in which general members of the public may gain access to private beaches by resorting to legal processes. While this may be an extremely time-consuming process, not to mention costly, it may yield positive results in the long term as more members of the public are able to gain access to beaches.

Because the number of people who want access to beaches far exceeds the number of people who own beachfront property and, therefore, private beaches, there will always be a demand for access to beaches where the public may not previously have been permitted.

Through Public Easements, the public may gain access to private beaches. In order to gain access, however, it must be proven that the land has been used and enjoyed by the general public for ancient customs.

The parties involved must be able to prove that the use and enjoyment of the land was indeed ancient, uninterrupted, and reasonable.

Conclusion

While owning a private beach is technically possible, there are certain restrictions that come with this type of land ownership. These restrictions are particularly difficult not only to enforce but to understand in terms of where the line is drawn.

In most states of the US, ownership of the beach extends only as far as the high water mark, with the intertidal zone (the strip of land between the high water mark and the low water mark) designated as public domain. In other states such as Maine, ownership of the beach extends as far down as the low water mark.

There are certain ways to get around the legislation associated with private beach ownership. Public easements are one such way to navigate around the concept of privately owned beaches, gaining access for the public due to certain conditions.

Sources

Chrissie Smuts

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