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Oceanfront vs. Ocean View

After 20 years of dreaming, last year my wife and I bought a modest beachfront home in Florida. We now own, for the benefit of our heirs and assignees in perpetuity, a 50-foot stretch of shoreline where the Atlantic Ocean meets North America.

Well, maybe not “in perpetuity.” What if the state someday decides to build a bigger, better beach directly in front of our house, and keep it for itself?

A group of property owners in the hurricane-scoured, spring-break-thronged beach community of Destin, Fla., sued to stop state officials from renourishing their critically eroded beach with dredged sand, because the resulting dry land would become state property. The private property owners, whose land was kissed (and often smacked) by the Gulf of Mexico, would find themselves owning real estate with an ocean view but with no ocean frontage.

Any real estate agent can tell you there is a difference between property that touches water and acreage that merely overlooks it. Waterfront property is almost always worth more. The Destin property owners believe the state should compensate them for what they are losing.

The Florida Supreme Court, whose decision is being reviewed by the U.S. Supreme Court, disagreed. The Florida court voted 5-2 to uphold the state’s Beach and Shore Preservation Act. The law authorizes the state to restore critically eroded beaches by creating new land above the “mean high water level” (you and I call it the high-tide line) that normally denotes the boundary between private “upland” owners and the tide-washed sands of the beach, which are public property open to everyone. The new land sits between the former shorefront owners and the sea, acting as a buffer.

The law gives the erstwhile shorefront owners a guaranteed right of access across the new terrain to the sea, and prohibits construction of any structures that might obstruct access or views, except structures that are needed to stabilize the new sand. The majority on the Florida court held that the right to own property up to the high tide line is merely “ancillary” to a right of access to the water, and that the state satisfies its obligation to the landowners by preserving their right of access.

I like to fall asleep to the sound of the surf pounding against the sand a stone’s throw from my window. If the state builds a new beach 100 yards wide, opens it to the public and allows hot dog and souvenir vendors to operate on it, I will lose my property’s connection to the ocean, even though I will retain legal rights to reach the water. Is my property’s contact with the sea merely “ancillary?” I did not think so when I bought it.

The dispute is not about “private” beaches. While many states only pay lip service to the principle that everyone is free to enjoy the sand below the high-tide line, Florida lives that idea. Many counties, including mine, provide ample public access to the beaches, complete with adequate parking, rest rooms and other facilities. Once on the sand below the dunes, a visitor can wander as far as he wants, at least until the tide comes in.

In New Jersey, shore communities do all they can to keep outsiders away from their beaches, with exorbitant permit fees and ridiculous parking rules. Greenwich, Conn., has a long history of trying to keep out the riffraff from Stamford and other nearby towns. Floridians, in contrast, welcome the world to their beaches.

The Beach and Shore Preservation Act is an important and well-intentioned law. It is in nobody’s interest to see valuable and beautiful beaches lost if they can be saved. Certainly, in many cases, work performed under the act actually increases the value of shorefront property. My new house will not be worth much if the beach begins in my living room.

The state has a lot of options. It could renourish beaches only below the high-tide line, leaving property lines alone. It could create new dry land and deed it to the adjacent property owners whose contact with the water otherwise would be cut off. It could treat the boundary change as an eminent domain case, and compensate the upland owner for the decrease in value — if any — of his property as a result of the changed landscape.

Nobody doubts that the state of Florida can lay claim to someone’s waterfront dream if it is for the greater public good. The question before the courts is whether the state must pay for what it takes.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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