Real estate Q&A: We pay for the upkeep of our beach paths, so do we have to allow others to use them?

Gary M. Singer, South Florida Sun Sentinel

Q: Our community association owns two paths to the beach. The association pays for the upkeep and expenses. Do we have to allow people who do not belong to our association to use our beach paths? —Ciaran

A: This issue can be tricky, and the answer will depend on many variables unique to your situation and location.

Generally, if a private beach has routinely been used by the public at large for recreation for an extended period, a “customary-use” right will develop.

Then private beach owners will not be able to start restricting the people from enjoying the beach.

Individuals acting up can still be removed from the beach, but the general public will have access.

Because there are so many factors to consider, these questions are often decided by a lawsuit, usually between the local government and the private beach owner.

Your situation is more about the path that accesses the beach than the beach itself.

The right to enter someone else’s land is called an “easement.”

People encounter easements all the time. Examples include utility easements over and under your lawn, drainage easements, and even your driveway connecting to the street.

Express easements can be created by a written agreement, similar to signing a deed.

Easements by necessity are formed when a property owner’s only access to a public road is across a neighbor’s property.

Another type, known as a prescriptive easement, can be created when you know someone regularly and openly uses a portion of your land for over 20 years without your permission, but you did nothing to stop them.

A well-worn path to the beach across a neighbor’s property is a typical example of a prescriptive easement.

If your beach paths have been in use for more than two decades, you may face a lawsuit if you block people now.

If the paths have not been around that long, you should be able to restrict them to your members with little more consequence than some disappointed neighbors.