SB 804 — Possession of Real Property

Florida Senate - 2018 CS for SB 804 By Senator Passidomo 28-00413A-18 2018804__ A bill to be entitled An act relating to the possessionCommittee ofon realRules; property;

and Senator Passidomo 595-03999-18 2018804c1 A bill to be entitled An act relating to the possession of real property;

66.021.66.021, F.S.;

F.S.;

renumberingtransferring, renumbering, and amending s.

704.09,163.035, F.S.;

requiringdefining that a claim of customary use for the publicterm use“governmental ofentity”; private property be applied to a particular parcel;

providingprohibiting fora judicialgovernmental determinationentity offrom claims;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;

6381 Be It Enacted by the Legislature of the State of Florida:

6583 Section 1. Section 66.021, Florida Statutes, is amended to read:

Section 5. Section 82.045, Florida Statutes, is redesignatedtransferred, renumbered as section 82.035, Florida Statutes, and amended to read:

Section 10. Section 704.09,163.035, Florida Statutes, is created to read:

704.09 Judicial163.035 Establishment determination;of recreational customary use.— (1) DEFINITION.—The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority.

customary(2) ORDINANCES use.—AAND commonRULES lawRELATING claimTO ofCUSTOMARY customaryUSE.—A usegovernmental forentity themay publicnot adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of privateany propertyportion mustof applya tobeach aabove particularthe parcelmean andhigh mustwater beline, determinedas bydefined thein court.s.

177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational 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.

397 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 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.