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Frequently Asked Questions
What is eminent domain?
Eminent domain is the fundamental power of the government to take private property for a public purpose without the owner’s consent. The power of eminent domain is incorporated in both the United States and Florida Constitutions. The Florida Constitution also provides that no private property shall be taken for a public purpose without full compensation. Florida Statutes provide for a twelve person jury to determine full compensation for the property owner.
What is the process and how long does it take?
Typically the process works as follows:
- •First, the condemning authority (the government agency with the power to take your property) will contact you to let you know that it is planning to acquire your property to accomplished a public project. The condemning authority will hire a property appraiser to estimate the value of your property.
- •Based on the appraiser’s findings, the condemning authority will make an offer to you. If you accept the offer or both of you agree to an alternative purchase price, the matter is settled.
- •If you and the condemning authority do not agree on a purchase price, the authority files a condemnation lawsuit. The condemning authority will seek to acquire the property in this lawsuit.
- •The method of transferring property that is most common is called a quick take procedure. The condemning authority must convince a judge that the property is being acquired for a public purpose, and the must deposit a good faith estimate of value with the local Clerk of Court’s office. The title to the property is transferred at the time of the deposit. Generally you can withdraw the good faith deposit money even if you believe your property has a greater value.
- •If a settlement amount cannot be reached, a jury will ultimately decide the value of the property in a valuation trial. If the jury decides that full compensation is higher than the good faith estimate, you receive the difference, as well as the interest on the amount of the difference.
Why do I need an attorney?
Eminent domain attorneys protect the property owner’s interest. Full compensation in an eminent domain case is determined by many legal factors, some statutory and some based upon prior decisions of the courts. Eminent domain attorneys utilize experts who are familiar with the condemnation process and are well qualified to advise the property owner and assist counsel in protecting your constitutional rights.
- •It is important to obtain legal representation at the outset because:
- •In certain cases your attorney may be able to minimize the damage to your property.
- •In certain cases your attorney may obtain an early settlement.
- •The pre-suit process can be complicated. Participation without representation may subject you to a variety of intrusive requests from the condemning authority.
What you can expect...
The Florida Department of Transportation and many condemning authorities have procedures in place to negotiate in good faith with the owner prior to filing a lawsuit to acquire a parcel.
- •Public meetings will occur to obtain input on the project design from nearby owners.
- •Property owners in the process should obtain legal representation at the outset..
Who pays the fees and costs of litigation?
The Florida Constitution and Florida Statutes provide that the condemning authority must pay the attorneys’ fees in an eminent domain matter. Generally, the attorneys who represent property owners agree to seek payment of their fees only from the condemning authority.
When do I receive payment?
If a quick take occurs, the owner can generally receive the good faith estimate approximately six weeks after the condemning authority deposits the funds funds in the court registry. Final payment will be received after a settlement is reached or after the valuation trial.
What happens to my business that is damaged in the condemnation process?
Under certain circumstances, Florida business owners are entitled to compensation for the losses which occur because of right-of-way takings.
Business damages can arise from lost parking, alterations to the interior traffic flow of a parking lot and other factors. Lost profit is not the sole measure of business damages. Florida courts have recognized that items such as diminished volume of business, diminished goodwill, or reduced value of the business equipment are also compensable. While there are a number of limitations on what can be recovered, business damaged in a condemnation case can be substantial. A business damage claim may be crucial to the future well-being of your business. A recent Florida Statute places the responsibility upon the business owner to address the upcoming acquisition in a much reduced time frame. We believe it is particularly important for business owners to obtain competent legal representation at the earliest stages of the acquisition process.
Am I paid for moving and relocation expenses?
Any property owner displaced by a federal or federally-assisted program will be offered relocation assistance services for the purpose of locating a suitable comparable replacement property that is safe, decent, and sanitary. Relocation services are sometimes provided by local governments and almost always by the state. Programs such as purchase additives, rent supplements, and down payment supplements are sometimes offered. The condemning authority may also reimburse the property owner for actual reasonable expenses related to the search for a replacement property.
Who has the power of eminent domain?
The power of eminent domain is primarily held by the federal government, state government, counties, and cities. The legislature may also delegate the power of eminent domain to certain non-governmental entities such as public utilities. Private owners, such as residential neighbors, do not have the power of eminent domain.
How is the power of eminent domain exercised?
A condemning authority may exercise the power of eminent domain directly or indirectly. A condemning authority directly exercises the power of eminent domain when it files a law suit against a property or business owner. This type of law suit is called an "eminent domain action." The property or business owner is made a defendant to the law suit.
A condemning authority indirectly exercises the power of eminent domain by taking property without first filing a law suit. This type of taking can occur through a physical use or invasion (such as flooding of the property) or through the application of a regulation (such as the denial of economically beneficial use of the property.) This type of taking is called an "inverse condemnation action." The property or business owner is a plaintiff in an inverse condemnation action and is suing the condemning authority.
What is the general process of an eminent domain action?
In Florida, a condemning authority may file one of two types of law suits, known as "eminent domain actions:" a quick-take action or a slow-take action.
What is a "quick-take" eminent domain action?
A quick-take action is almost always the type of eminent domain action filed. It usually involves the taking of private property necessary for road construction projects. A quick-take action is divided into two stages. In the first stage, the condemning authority files a law suit and sets a hearing known as an"order of taking" hearing. At the order of taking hearing, the condemning authority must prove three things:
- •that the property is necessary,
- •for a public purpose and
- •that it has prepared a good faith estimate of value based on a valid appraisal report.
Once the judge enters the order of taking, the condemning authority deposits the good faith estimate of value into the court registry and becomes the owner of the property. After the order of taking hearing, the second stage of the quick-take action begins. In the second stage, a twelve-person jury decides the amount of compensation to be paid the property or business owner for the taking.
What is a "slow-take" eminent domain action?
A slow-take action is rarely the type of eminent domain action filed. It may involve the taking of private property necessary for parks or environmental preservation. In a slow-take action, the condemning authority files a law suit and a twelve-person jury decides the amount of compensation to be paid. After the jury renders its decision, the condemning authority chooses whether to acquire the property. If the condemning authority chooses to acquire the property, it then deposits the amount of the jury's decision into the court registry. If the condemning authority chooses not to acquire the property, the judge dismisses the law suit.
What legal notices should I receive before an eminent domain action?
Florida law requires that all condemning authorities send only business and property owners a written notice before filing an eminent domain law suit.
What date is used to value the interest in the property taken?
The date used to value the interest in the property taken is the date that title passes (in a quick-take, this is the date of deposit of the condemning authority's good faith estimate of value) or the date of trial (in a slow-take), whichever occurs first.
What compensation is the interest in the property paid for the taking of its interest?
The document creating the interest in the property may have a provision for eminent domain, called a "condemnation clause." If there is no condemnation clause, Florida law provides that the condemnation award is to be allocated between the owner and interest. If there is a condemnation clause, the provision will control whether the interest can recover for the taking of its interest. If the interest in the property is entitled to compensation for the taking, this compensation is usually be paid out of the money recovered by the owner.
Can an owner challenge the taking of private property by eminent domain?
Yes. An owner can challenge the taking of its private property by the power of eminent domain. If the challenge is successful, the judge may dismiss the eminent domain law suit.
Am I entitled to a copy of the condemning authority's appraisal report?
Yes. Upon request, the law requires the condemning authority to provide you a copy of the appraisal report for its good faith estimate of value.
Do I have to accept the condemning authority's offer?
No. You are entitled to obtain your own valuation prepared by experts retained on your behalf.