EMINENT DOMAIN
“No private property shall be taken except for a public purpose and with full compensation….”
- Article X, Section 6, Florida Constitution
OVERVIEW
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Eminent domain, or condemnation, is the power of the federal, state and local government to take private property.
In Florida, pursuant to Article X, Section 6 of the Florida Constitution, a condemning authority is only permitted to use eminent domain to take property after demonstrating in a court of law that a proposed taking is reasonably necessary to achieve a public purpose.
Additionally, the Florida Constitution requires condemning authorities to provide landowners with “full compensation” in exchange for a taking.
THE RIGHT TO CONDEMN
The first question many landowners have when approached by a condemning authority seeking to take land is likely something along the lines of “how can this happen?”
Generally, the federal government, the state, as well as all counties and cities throughout the state, have the power of eminent domain. In Florida, the power of eminent domain has also been extended to many non-governmental entities, such as public utilities or private gas companies. Still, while the Florida Constitution grants condemning authorities this extreme power, it also serves to limit the power to protect landowners from eminent domain abuse.
The fact that an authorized condemning authority holds the power of eminent domain does not necessarily mean that public or quasi-public entity has the right to take your specific property for any reason. If you do not consent to a proposed acquisition, a condemning authority must prove in a court of law that a proposed taking is reasonably necessary to achieve a public purpose before taking title to your property. If a landowner successfully challenges a proposed taking, the judge may dismiss the condemning authority’s eminent domain action.
Common examples of a “public purpose” that meet this limitation on the government’s power are infrastructure projects for roads, schools, hospitals, police/fire stations, parks, airports, or public utilities, among others. While permitted in some states, the Florida legislature and courts have rejected the idea that promoting economic development of underdeveloped or “blighted” areas constitutes a public purpose, and condemning authorities are likewise specifically prohibited by statute from abusing the power of eminent domain to advance private economic development.
FULL COMPENSATION
In Florida, landowners are guaranteed “full compensation” under Article X, Section 6 of the Florida Constitution. This full compensation guarantee is unique to Florida, with the United States Constitution and the law of most other states guaranteeing only “just compensation.” So, what does this mean to you?
Florida’s “full compensation” provision is intended to make the landowner whole after consideration of all factors and circumstances surrounding the landowner’s loss. Stated differently, landowners have a constitutionally guaranteed right to be placed in the same financial position as if there were no taking whatsoever. Thus, in addition to “fair market value,” condemning authorities are also responsible for payment of items such as moving costs, severance damages, attorneys’ fees and fees and costs for experts necessary to put landowners on equal footing with the condemning authority.
While business damages are not included as part of Florida’s constitutional full compensation guarantee, established businesses are often entitled to recover damages for lost profits pursuant to Florida’s statutes. Thus, along with landowners, business owners should carefully select an eminent domain attorney to assist in analyzing potential business damage claims.
PROCESS
Before a condemning authority in Florida may attempt to exercise the power of eminent domain through the court system, it must first present you with a good faith offer to acquire the property based on a valid appraisal.
We will assist you in assessing this initial offer and appraisal to help determine whether the condemning authority’s estimate of value adequately meets the guaranteed standard of full compensation. In almost all cases, we find that condemning authorities initial offers are much too low, and that our clients can ultimately receive much larger settlements than their original offer.
In some cases, we are able to negotiate full compensation without the need for litigation. Absent such an agreement, the condemning authority will file a lawsuit against a landowner or business owner seeking to take the property. This is called an “eminent domain action,” and the landowner or business owner is named as a defendant in the lawsuit.
In most cases, condemning authorities will file a “quick-take” eminent domain action. In a quick-take action, the condemning authority seeks to meet the public purpose/reasonable necessity standard at the outset of the case, and if able to satisfy that standard, must make a deposit in the amount of its good-faith estimate of value in exchange for title to the property. The landowner is entitled to immediate use of the condemning authority’s deposit, as the condemning authority is entitled to immediate possession of your land. From there, the case moves forward to a compensation phase, culminating with a valuation trial with a twelve-person jury to decide the amount of compensation the landowner or business owner will receive based on the full compensation standard.
Less frequently, a condemning authority will file a “slow-take” eminent domain action. In this situation, the twelve-person jury determines the amount of compensation to be paid prior to title transferring to the condemning authority. Once the jury renders its verdict as to the amount of compensation, the condemning authority can choose whether or not it wants to proceed with taking title. If the condemning authority decides not to acquire the property, the judge dismisses the lawsuit.
Most Florida judges will require that the parties to an eminent domain action attend a mediation conference at least once prior to a jury trial. During an eminent domain mediation, a neutral mediator – usually an attorney or former judge with eminent domain experience – assists the parties in attempting to reach a resolution in a formal setting. While the mediator has no authority to require any outcome, and neither party is otherwise required to reach a resolution at a mediation conference, most eminent domain actions that go to mediation end with a settlement.
If a condemning authority is unwilling to come to a resolution that adequately satisfies your right to full compensation either at mediation or at some other point prior to trial, the action will proceed to a twelve-person eminent domain jury trial. The jury will be responsible for determining the amount of compensation to be paid for the property taken and for the amount of severance damages to the remaining property, if any. Once the jury renders a verdict on the value, the judge will enter a final judgment directing payment of the final amount awarded.
INVERSE CONDEMNATION
In some circumstances, where the government does not seek to acquire property rights through eminent domain, a landowner's property rights might still be impacted by government action to an extent that the landowner loses an essential portion of those rights. In these instances, a landowner can bring an Inverse Condemnation action seeking to enforce the eminent domain clause of the Florida or federal Constitutions. In a successful inverse condemnation action, landowners in Florida are entitled to receive full compensation the taking of their property rights as though the condemning authority had filed a formal eminent domain action
WHY HIRE US?
We are results-driven, motivated by client success, and dedicated to giving tireless effort to ensure our clients are treated fairly in the process of obtaining full compensation.
Our eminent domain and condemnation practice is entirely dedicated to representing Florida landowners and businesses facing the threat of governmental takings. While obtaining full compensation is always a primary goal in these cases, we are often able to also identify and implement non-monetary solutions to real-world problems created by takings from your property. We have the knowledge, experience, and tenacity needed to advise and advocate on your behalf to achieve the critical results you deserve – whatever those might be in your unique case.
Most importantly, it is never too early to hire our firm. Not only will we closely track the condemning authorities projects and activities so you will not have to be further burdened by the process, we will also work with you to make a variety of important pre-condemnation planning decisions to help you maximize the value of your property. And, because condemning authorities are required under Florida law to pay attorneys’ fees as part of your full compensation, you will not be responsible for paying us for this pre-condemnation planning assistance.
