The Eminent Domain Process

The government may only acquire private property for  public purposes such as roads, retention ponds, schools, or utility projects. The usual first step is  the Preliminary Engineering and Design phase (PDE). This is the stage where the government must consider alternative locations for the project. An indication that a PDE is occurring is the appearance of survey stakes. Some of the factors which must be studied and weighed are: cost, safety, long range area planning, environmental issues and special issues relative to the particular project. Public hearings where the government takes citizen comment should occur at this stage. Educating the government about the harm a specific route or component of the project will cause can sometimes lead to design changes. Once the required public hearings are held, the preferred route is selected. The next step is the creation  of construction plans. Once completed,  the construction plans, which may include plan and profile, cross sections, drainage, pavement and marking plans can be analyzed to determine exactly what harm the owner’s property will suffer as a result of the taking and the construction of the project.  For example, the government acquisition of a  thin strip of land  may at first seem harmless however the plans may call for  the elevated construction of the adjoining project which in turn will cause drainage issues and or access problems for the owner’s property. LAND ACQUISITION PROCESS: Every project is unique and the government may apply different  processes. Typically the government will hire a real estate appraiser to value each of the parcels sought to be  acquired. The government's real estate appraiser is normally assigned a multitude of parcels to appraise on a strict budget. A government right of way agent or acquisition company agent then makes the owner a first offer to purchase based on the government’s approved appraised value.  Governments may  attempt to pressure owners to enter into hasty decisions by giving a time deadline for accepting the offer. Some governments may attempt to persuade the owners against obtaining expert advice in reviewing the case by not advising the owners of their constitutional right to have an eminent domain lawyer and experts paid by the government as is required by Florida Statutes 73.015. 73.091 And 73.092. (Click on statute number for the complete statute). Accepting a first offer without being fully informed is unnecessary and can be extremely risky. Florida Statutes require the government to provide the owner with both the  appraisal upon which the initial offer is based and  the project construction plans. After a thorough review of the appraisal and construction plans, the owner’s attorney and experts can properly advise the owner of the potential damages the project may cause so that the owner can make an INFORMED DECISION on the amount of full compensation. The owner may choose at this time to complete his or her appraisal and make a counter offer or wait until the government files its eminent domain proceedings. Once eminent domain proceedings are filed, the government is required to deposit into the registry of the Court its appraised value which the owner may withdraw, subject to taxes and other interests such as mortgage, etc. The case will then go to MEDIATION. This is the process where both the government and the land and/or business owner have an informal meeting with a neutral Florida Supreme Court Certified Mediator. Each party will present its case in complete confidentiality and free from fear that settlement discussions  at mediation will be brought out in Court. After a period of give and take negotiation which may include changes in construction plans and always money, a mediated settlement agreement may be reached which leads to a stipulated final judgment to be signed by the Judge and recorded in the Official Records. The owner may demand that the project construction plan sheets related to the owner’s particular parcel are attached to the final judgment. This insures that should the project be constructed other than as agreed, the owner has the ability to seek further damages. Should the case fail to mediate, the owner is entitled to a twelve person jury trial. The trial typically lasts one week and is held in the Circuit Court of the County where the property is located. Every case is unique and depending on the positions of the parties, may settle at any point in the process. BUSINESS DAMAGES: Landowners are entitled to Full Compensation. Business owners must meet specific qualifications in order to be entitled to business damages. There are many twists and turns which may lead to the qualification or disqualification of the particular business damage claim. Remember, the government entity seeking to acquire your property is attempting to hold the costs down. It is your responsibility to ensure that you properly qualify and maximize your claim. The first test is that on the day of taking, the business must have operated on the property taken and adjoining remaining lands for at least five years prior to the taking. The acquisition must be a partial taking of land. This seems relatively simple however Court rulings make qualification complicated in some cases. An example of the pitfalls of the business damage statue is the following. A land owner owns land. The same landowner, who owns one hundred percent of the business, decides to incorporate the business for liability reasons. The government acquires a portion of the land upon which the business operates. As a result of the taking, the business suffers lost profit making ability because of the lost land resulting in lost parking or building etc. Although the landowner would certainly allow his own company to remain on his land, the Courts have limited the corporations’, (considered a separate legal entity), business damage claim to the remaining length of time left on a lease. If no lease is in place, the business damages may be limited to thirty days of damage. Although the corporation which is completely  owned by the individual land owner truly suffers lost profits as the result of the government taking, its damages will not be legally compensable because of a lack of preparation. The time to prepare for a business damage claim is well in advance of the first offer from the government and notice to business owners. The process has some similarity to estate planning. The business damage statute is Florida Stature 73.071 and 73.015 (click on statute number to review the full statute). There are a number of additional pitfalls which careful planning can overcome.

COMMON QUESTIONS ABOUT THE PROCESS:

WILL I BE REQUIRED TO PAY ANY ATTORNEYS FEES OR COSTS? Florida Statutes require the government pay reasonable attorney fees and expert costs. Although some attorneys may seek a portion of the money paid for your land or business, BRENT SIMON LAW GROUP is satisfied with the attorneys fee and costs which the Florida Statues require the government to pay based on benefit the firm obtains for the client. The owner pays no attorneys fee nor cost! CAN THE GOVERNMENT  SIMPLY TAKE MY LAND IF I DO NOT ACCEPT THE OFFER WITHIN THE TIME ALLOTTED IN THE OFFER LETTER? Absolutely not. The government must obtain clear title to the property it needs for its project either by voluntary deed or by Court Order after strictly following the appropriate rules and paying  the good faith estimate based on a valid appraisal into the registry of the Court. ONCE THE GOVERNMENT ANNOUNCES A PROJECT, SHOULD I STOP MAINTENANCE AND FUTURE PLANS? NO. Government projects are notorious for delays. Appraisals are extremely visual by nature. The better a property looks, generally  results in a greater  value  recovered.  Maintenance or lack thereof will directly relate to the amount of depreciation an appraiser will apply. The better the condition a structure is in the greater the value. Vacant properties at the time of the PDE study which are subsequently developed have led to the government relocating a project. CAN THE GOVERNMENT PREVENT ME FROM UTILIZING MY LAND  AFTER IT IS EARMARKED FOR A FUTURE PROJECT?     The answer is no. Until a voluntary deed is signed or a Court issues its order of taking, the government cannot prevent the land owner from utilizing its lands in a lawful manner in accordance with the zoning and land use codes. ONCE THE GOVERNMENT IDENTIFIED MY PROPERTY FOR A FUTURE ACQUISITION, I CANNOT RENT OR SELL THE PROPERTY AND I AM AFRAID THE PROPERTY VALUES ARE GOING DOWN. WILL THE GOVERNMENT BE ABLE TO TAKE ADVANTAGE OF THIS? A government appraiser may fail to understand the disastrous effects the publication of a future project may have on the landowner. The catch phrase describing this condition is  CONDEMNATION BLIGHT. Florida law requires  the land to be  valued at its HIGHEST ANDBEST USE. This means the most profitable use for which the property is likely to be needed in the reasonable foreseeable future. Evidence of lower values which result from the blight caused by the government project is inadmissible evidence. MY LAND IS CURRENTLY  VACANT PASTURE LAND AND IS GREEN BELTED FOR TAX PURPOSES. I HAD PLANS FOR A MORE INTENSE USE IN THE FUTURE. DOES THE CURRENT USE LIMIT THE ULTIMATE AWARD?          This gets back to the HIGHEST and BEST USE definition which appraisers must consider in appraising property. The property’s highest and best use is often completely different from the current use. Therefore even though property is currently being used for grazing cattle or left vacant, if it’s highest and best use is commercial or multi family, the government must pay commercial or multi-family property values. I RENT MY LAND, WILL THE TENANT RECEIVE COMPENSATION?  CAN THE TENANT CLAIM SOME OF THE MONEY PAID FOR THE PART TAKEN? Depending on the amount of rent paid versus the fair market rental rate, a tenant may be entitled to a portion of the money paid for the land acquired. The process is called apportionment. The landlord can eliminate this possibility by simply including a “condemnation clause” in the lease. We can provide sample clauses at no cost to you. If you are a property owner and believe that the government may be acquiring your property for a future project, we would welcome the opportunity to review the facts of your case and discuss  your legal options AT NO CHARGE.

FLORIDA EMINENT DOMAIN STATUTES

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FL STATUTE 73.015 Presuit Negotiation
FL STATUTE 73.015 Presuit Negotiation
FL STATUTE 73.091 Costs of Proceedings
FL STATUTE 73.091 Costs of Proceedings
FL STATUTE 73.092 Attorneys Fees
FL STATUTE 73.092 Attorneys Fees