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Florida Eminent Domain - Practical Advice for Landowners and Business Owners

By: Michael H. Rosen, Esquire
SAXON, GILMORE, CARRAWAY, GIBBONS, LASH & WILCOX, P.A.

DISCLAIMER: This is article is not intended to provide a complete analysis of the laws of eminent domain. Each case is unique and needs to be evaluated in detail based on an individual basis.

Like most things in life, the Boy Scout’s motto of “Be prepared” also applies to precondemnation planning in Florida. Knowing what steps to take before the bulldozers come can maximize your settlement or jury award and give you the peace of mind you deserve. Below are some helpful hints that you should be aware of as a property owner or business owner in the event the government decides to take your property.

Hire experienced counsel. The laws of eminent domain in Florida are complex and carry with the number of minefields that require special attention of an attorney who has experienced in this specialized area of the law. Experienced lawyers in this field also know how to evaluate your case and select knowledgeable and tested experts. Your attorney can offer you advice on the condemnation process with the ultimate goal of obtaining “full compensation” for the taking of your property as guaranteed by the Florida Constitution.

Don’t’ be afraid to ask a prospective attorney whether he or she has actually tried jury trial in this area. In fact, the government’s attorney will also take into consideration how well your attorney will fare in the courtroom in making a settlement offer. Selecting an attorney who has experience representing the government in eminent domain cases can give you a definitive advantage since the attorney will have valuable insight into the government’s litigation strategy and operating procedures.

How much is this going to cost? Florida is unique in that most states do not pay for your attorney and expert witnesses. The Florida Constitution, however, guarantees you “full compensation,” which has been interpreted by the Florida court’s as including your attorneys’ fees and the reasonable and necessary cost of your expert witnesses. In most instances, you will not have to pay an attorney any money. Your attorney is compensated by the entity acquiring your property based on a statutory percentage of the benefit your attorney obtains for you.

Be wary of the representations made by government officials. Most government employees are genuinely committed to trying to assist you, but the bureaucracy sometimes results in information that can be inaccurate or misleading. Additionally, a government agency can change its mind which can cause a major problem if you relied on the government’s representations. Experienced counsel can assist you in this area since commitments can be made binding on the government, so if changes do occur, you will have some recourse.

Have a plan for your property or business. As a result of a taking by the government, you may be faced with major decisions that affect your livelihood. Documentation of business and real estate records could help you in obtaining the compensation you are entitled to receive.

Until the government takes your property, you still have the right to use it for any lawful purpose. The steps you take to protect your rights could have a significant impact on your case. You shouldn’t sit idle just because your property has been slated for condemnation. In fact, if you wait until the condemnation is imminent; it may be too late to protect your interest. Your attorney can advise you on what course of action you should take in the interim. In the majority of cases, it is important for you to maintain the property in good condition. Florida law allows a jury to view the property prior to reaching a verdict. If you fail to maintain your property, it will likely result in a lower value. It is never too early to adopt a plan for your property or business when you find out the government is interested in taking your property.

Coordinate a unified plan: Coordinating a unified plan with your tenant or landlord when possible may prove helpful in maximizing your settlement or award. Government agencies may try to “divide and conquer” when theories of the property and business owners are inconsistent.

Consider non-monetary solutions. In some situations, money will not cure the problems associated with the government’s taking. Creative solutions can be explored which will alleviate these concerns. Government agencies have been known to make engineering concessions as part of a settlement agreement that can result in a win/win outcome. Other non-monetary solutions can include relocating retention ponds, adding or widening driveway connections, agreeing to extend the time that you possess the property, or changing constructions plans.

Know your rights under the law. Most property owners and business owners are unfamiliar with the world of eminent domain. The lack of familiarity with the process can understandably cause stress. The advice of counsel may give you the comfort level you are looking for in order to make important decisions regarding your business or property. Business owner and property owners are often confronted with practical problems like the loss of access, diminished visibility, changes in grade, and lost parking.

The government can take you property only after filing a lawsuit. The government must also follow strict procedures and present sufficient evidence to a judge. Although the burden of proof to acquire property favors the government, you have a right to resist the government’s taking and present evidence as to why the government has not complied with all of the conditions for acquiring your property.

The taking of private property by the government has been considered by the courts to be one of the harshest proceedings in the law. However, you may be surprised to learn that not everything that reduces the value of your property is legally compensable. For example, business damages are not available when your business has been in continuous operation for less than four years prior to the government’s acquisition. Also, Florida Statutes only allow you to claim business damages where there is a partial taking of your property as opposed to a whole taking of your property. Moreover, most business owners are not aware of the fact that a loss of income caused by the road construction associated with the project is generally not compensable.

In Florida, you have a right to a jury trial in the event that you are unable to reach an agreement with the government. The jury will be composed of twelve individuals who are selected from the driver’s license records. Both sides have an opportunity to question prospective panel members. The government has the burden of proof on the issue involving the taking of your land and the improvements, whereas, the property owner has the burden of proof with respect to “severance damages” which is the diminishment in value of your remaining property due to the taking. As a result the trend towards alternative dispute resolution, most cases are resolved at a mediation conference.

Prior to filing the lawsuit to take property, the government has to inform the fee owner and business owner of their rights under Florida law. However, the information you receive from the government may not be easily understood. Also, the law imposes time limits which could result in your claim being barred. For example, a business owner claiming business damages must provide the condemning authority with the amount claimed in business damages within 180 days of receipt of the government’s notification of rights or at a later time mutually agreed to by the government and the business owner.

Know your adversary: The government’s expert witnesses evaluating your property may have been selected not because they were the most qualified, but simply because they were the lowest bidder. As the saying goes, “Don’t fly me to the moon on the lowest bidder.” Florida law affords property and business owners the opportunity to select their own witnesses and have them paid by the government as long as the work is reasonable and necessary. As a result of the problems associated with the government’s selection process for expert witnesses, the government’s experts may have overlooked certain amenities of your property or business. Additionally, some of the contracts between the government and its experts create a financial disincentive for the expert to hire sub-consultants out of their pocket.

Since the government is responsible for paying the reasonable and necessary costs of the landowners and business owner, it is often to the government’s advantage to settle cases without protracted litigation. Most courts around the state will require parties to attend mediation conferences where the mediator’s fees will be paid by the government. Like most civil cases, eminent domain cases settle prior to trial.

What if I lease the property: Tenants are considered owners by the Florida courts. Since your interest in the proceeds of the condemnation case may be adverse to that of your landlord, you should consider hiring you own attorney who will be obligated to protect your rights. The lease should be reviewed by your eminent domain attorney in order to evaluate your rights.