Eminent domain, sometimes referred to as condemnation, is the government power to take private property. This power requires the government to prove that the taking is for a public purpose (e.g. building a road) and to pay fair compensation to the landowner. In many instances tenants are also entitled to compensation in addition to the landowner, if their lease is affected by the taking. In Florida, eminent domain power can be exercised by the state, county and municipal governments. Administrative agencies such as school boards, the Florida Department of Transportation, railroads, and utility companies also have eminent domain powers. This article refers to the government entity exercising eminent domain authority simply as the “Government.” The United States Government and Federal agencies also have eminent domain powers governed by similar Federal laws, but this article focuses only on Florida law.
Eminent domain procedures in Florida are governed by Chapter 73 Florida Statutes. The typical steps in an eminent domain action are as follows:
1. Government Announces Project and Determines What Lands Will Be Acquired
The Government plans its project and determines what lands it does not already own will be needed. The Government hires engineers and surveyors to map out the project. The project map identifies parcels to be purchased in whole (fee simple) and parcels where only an easement (limited right to use land) is needed. In most cases the Government follows a procedure commonly referred to as a “slow” taking. Under this procedure, the Government does not actually acquire the property until after it is appraised and purchased through negotiation, or if the value is challenged until the value of the land is established by trial. Under a “slow” taking, the Government retains the option to change its mind and not acquire any parcel if it determines that the price is too expensive and that there are alternative ways to complete the desired project.
Less common is a “fast” taking. This procedure is used only when time is essential on a critical project. In a “fast” taking the Government first acquires ownership of the property needed for the project, and is bound to pay whatever value a jury sets on the lands taken if the Government and landowner are unable to agree on a fair price by negotiation. Because “fast” takings are less common, this article focuses on “slow” takings.
2. Government Appraises Property to Be Taken
After identifying every parcel of land that will be needed to complete the project, the Government then obtains an appraisal. The appraisal is performed by an independent real estate appraiser hired by the Government. The appraiser determines that value of land and all improvements on the land (e.g. buildings, fences) for parcels that will be completely acquired by the Government. Where only a portion of an owner’s property will be taken, the appraiser will value both the land being acquired and any diminution (reduction) in the value of the owner’s remaining lands caused by the project. The appraiser will also determine the value of any easements being acquired, whether temporary (e.g. the right to come onto the property during the construction of the project only) or permanent. The appraiser will also determine other compensable losses suffered by the property owner such as business damages. Examples of business damages include lost rental income, and lost sales and profits.Once the Government identifies and values the property to be taken, the affected landowners are notified.
3. Property Owner Engages Eminent Domain Attorney
Once a property owner (or tenant) learns that their property will be affected by eminent domain the first step should be to hire an experienced real estate attorney. Florida law requires the Government to pay the owner’s attorney’s fee in addition to the payment due for the value of the property. Most eminent domain attorneys, including Ansbacher Law, agree that no attorney fees or costs will be due from the owner. Unlike contingency fee arrangements for legal representation in other practice areas (e.g. personal injury) the attorney’s fees and costs do not come out of the client’s recovery, but are supplemental. Accordingly, there is no cost or reason for a property owner not to secure the benefits of an experienced eminent domain lawyer. An attorney can help the property owner navigate through the complexities of eminent domain, obtain the most money for their land by negotiation or at trial, work with engineers to minimize adverse affects to remaining lands, and explain the tax implications associated with a taking.
4. Government Makes Offer to Property Owner and Attorney Evaluates the Offer
Florida Statute Section 73.015(3) requires the Government to make a formal offer to purchase the property for the appraised value before filing a lawsuit. During this legally required negotiation period the property owner is entitled to receive a copy of the Government’s appraisal report. Once the Government’s appraisal and construction documents are provided to the property owner, the owner’s lawyer can evaluate the offer to determine whether it contains errors or represents fair compensation. Although a settlement can sometimes be reached at this early stage, in most cases the property owner will want the benefit of his or her own appraisal before agreeing on a price.
5. Property Owner Engages Appraiser with Attorney’s Assistance
Florida law entitles the property owner to hire their own appraiser and the Government to pay the associated costs. Accordingly, in most instances a property owner, with their attorney’s guidance, should hire an independent appraiser rather than simply accepting the valuation determined by the Government’s appraiser. Also, in appropriate circumstances the property owner should hire a traffic engineer, paid for by the Government, to review the project, suggest changes to minimize adverse impacts, and to assist the appraiser in determining the damages.
6. Property Owner and Government Attempt to Negotiate a Settlement
With the benefit of the property owner’s own appraisal, the attorney will then attempt to negotiate and obtain full compensation for the taking. These negotiations will sometimes also include non-monetary concerns, such as the timing, boundary adjustments and changes desired by the owner to minimize the impact on any land not taken by the Government. If the property owner and Government agree upon terms, then the Government pays the compensation and the property owner conveys the land by deed or easement agreement. This process is similar to a real estate closing between private parties. The owner’s attorney will prepare or review the documents and assure that the closing is in accordance with the settlement terms. If a settlement is reached at an early stage no lawsuit is ever filed by the Government.
7. If No Settlement is Reached, Government Can Commence Condemnation Proceeding
If negotiations fail to reach a settlement, the Government can commence a condemnation proceeding in accordance with Florida Statute Section 73.021 in the Florida Circuit Court with jurisdiction over the property’s location, or the Government may choose to modify the project to avoid taking the owner’s property. If a lawsuit is commenced, the Government is required to pay the owner the value of the property being taken as determined by the Government’s appraiser upfront. The subject of the lawsuit then is typically focused on the additional compensation due the property owner to obtain full and fair value. Eminent domain actions in Florida are decided by a twelve (12) person jury.
An experienced Jacksonville eminent domain attorney at Ansbacher Law can help you get the fair compensation you deserve for your property. Call us at 904-737-4600 for a free consultation.