What is Eminent Domain in Florida?
Eminent domain sometimes referred to as condemnation or a taking, is the government’s power to take private property for a public purpose (e.g. building a road). Article 10 of Florida’s Constitution requires the government to pay the landowner “full compensation” for an eminent domain taking. In many instances, tenants also are entitled to compensation if the tenant’s lease is affected by a taking. In Florida, eminent domain procedures are governed by Chapters 73 and 74 of the Florida Statutes.
In Florida, the power of eminent domain can be exercised by the state, county and municipal governments and agencies such as school boards, the State of Florida Department of Transportation (FDOT) and Water Management Districts. Railroads and utility companies such as Duke Energy and TECO also have the power of eminent domain.
steps the government follows for a taking by eminent domain
Government announces and studies project: You may hear about a government project in your area from letters, the newspaper or other forms of communication such as social media. When the government announces a project, it studies the alternative areas where it wants to construct it and determines what property it needs. When you learn a project may impact your property with a taking, consult with a skilled and experienced eminent domain attorney at the Ziegler Law Group. It is never too early to begin assembling your case to defend your property against the taking or to receive full compensation for your property.
Government sends Notice to Owner: Once the government identifies the project area and which parcels, either in whole or in part, it needs for the project, it sends a letter called a “Notice to Owner” as required by §73.015(1)(a), Florida Statutes. The Notice to Owner informs the property owner of the government’s need for the owner’s property and the project for which the owner’s parcel is considered necessary. Often, the government includes a sketch showing the specific area the government wants from the owner’s property.
Owner engages the Ziegler Law Group, eminent domain attorneys, who you will not pay because the government is required by Florida law to pay an owner’s attorney’s fees.
As soon as a property owner (or tenant) learns his or her property will be impacted by eminent domain, an owner (or tenant) should hire the Ziegler Law Group, experienced and skilled eminent domain attorneys. The Ziegler Law Group will navigate through the complexities of eminent domain with the property owner, work with engineers, appraisers and other experts to identify and minimize the adverse effects to the owner’s remaining land, and obtain the full compensation for the land taken by negotiation, mediation, or at trial.
Florida law requires the government to pay the owner’s (or tenant’s) attorney’s fees in addition to paying the owner for the land and improvements taken and severance damages. The attorney’s fees and costs are paid on top of what the owner receives.
Government prepares an appraisal: The government will inform the owner or the attorney of its intention to appraise the owner’s property. The government’s appraiser inspects the owner’s property and determines the value of land and improvements the government intends to take (e.g. buildings, fences, irrigation, landscaping, parking, etc.) and any diminution or reduction in value (severance damages) to the owner’s remaining land and improvements caused by the taking.
This first appraisal is the government’s opinion of value. You will need your own opinion of value and your own appraisal which is why you need to hire the Ziegler Law Group.
Government sends Notice to Business Owner regarding business damages: The government is required to send a Notice to Business Owner to inform a business owner of the business’s obligation to make a business damage claim. The business owner has the burden to prove loss in revenue or additional costs to the business resulting from the taking. The Ziegler Law Group will assist the business owner in hiring a business damage expert who will analyze a business’s anticipated losses it will suffer from the taking. Examples of business damages are lost sales and profits caused by reduced parking or a change in circulation within the remainder property caused by the taking. Business damages are controlled by §73.015(2), Florida Statutes.
Government makes “First Written Offer” to property owner: The government is required by §73.015(1), Florida Statutes, to make a “First Written Offer” of compensation to buy the owner’s property. The government’s offer is generally consistent with the government’s appraised value identified in the government’s appraisal report. The property owner is entitled to receive a copy of the government’s appraisal report and construction plans on which the government’s appraisal is based. The legal team at the Ziegler Law Group will evaluate the government’s offer and appraisal to determine whether it provides “full compensation” as required by Florida law. By looking at the appraisal, your lawyer will often spot glaring omissions in the appraisal and can begin building a case for you to receive “full compensation” for your property. Although an owner and the government sometimes reach an agreement at this stage, generally, the property owner will want to conduct their own analysis and prepare their own appraisal before agreeing on a price to sell the property to the government.
Florida law is very specific about the content of the notice you must receive with the “First Written Offer.” The notice must include:
- A statement that all or a portion of your property is needed for a project
- The nature of the project and a specific designation of what parcel is necessary
- Notification of additional information you can receive by request
- A summary of your statutory rights or a copy of two sections of the Florida statutes, 73.091 and 73.092.
You should take all this information to a consultation with the Ziegler Law Group. This information should be sufficient to begin building a defense against an illegal taking and determine the compensation you are due for a taking.
The Ziegler Law Group works with the property owner to engage an appraiser and other experts: The property owner is entitled under Florida law to hire its own appraiser, and the government is required to pay the reasonable fees and costs of the owner’s appraiser and other necessary experts. With the guidance of the Ziegler Law Group, the owner will hire an independent appraiser specifically skilled in appraising property for an eminent domain taking. The Ziegler Law Group will hire a civil engineer, among other experts, to analyze the impacts from the taking. These experts will be paid by the government to review the project’s construction plans, suggest changes to minimize adverse impacts, and assist the appraiser in valuing the property before and after the taking and severance damages.
Property owner and government attempt to negotiate an acceptable purchase price for the owner’s property: After the property owner’s analysis and appraisal is complete, the attorneys at the Ziegler Law Group will work on your behalf to negotiate for the government to pay full compensation to you for the anticipated taking. If the property owner and government agree on a purchase price without the government filing an eminent domain lawsuit, the government pays the compensation and the property owner conveys the land by deed or easement agreement to the government.
The government files an eminent domain lawsuit: If the owner and government do not reach an agreement on a purchase price, the government can file a condemnation or eminent domain lawsuit at least 30 days after it makes the owner a “first written offer.” The eminent domain lawsuit filed with the court and served on the owner includes a Petition in Eminent Domain and a Declaration of Taking, among other pleadings. The Petition in Eminent Domain details the parcel the government is seeking to take from the owner.
The Order of Taking hearing; Good Faith deposit and transfer of title: After filing suit, the government will schedule an Order Taking hearing with the court. At the hearing, the government will present evidence of its need for the project and the owner’s parcel for a public purpose. The government also is required to present evidence of its good faith estimate of value for the taking based on a valid appraisal. The Ziegler Law Group will represent the owner at the Order of Taking hearing to make sure the government meets its burden of proof and deposits its good faith estimate of value for the taking into the registry of the court. Florida law requires the government to pay the owner an upfront deposit of the amount the government has determined is the value of the taking. If the government meets its burden of proof, the court will enter an Order of Taking and require the government to deposit within 20 days the government’s good faith estimate of value into the court registry. Upon the government’s deposit of the good faith estimate of value, title to the owner’s land transfers to the government.
Obtain Full Compensation Through Preparation, Litigation, Negotiation and Mediation. Following entry of the Order of Taking, the lawsuit shifts to focus on the additional and full compensation due the property owner for the taking. The owner’s appraiser completes an appraisal with input from other experts. Once the owner’s appraisal and supporting reports are final, the Ziegler Law Group will engage in negotiations and mediation with a court-appointed mediator. The purpose of negotiations is to bridge the difference between the government’s opinion of value and the owner’s opinion of value to reach a dollar amount the owner is willing to accept for the taking of his/her property.
A jury will decide “full compensation” at an eminent domain valuation trial if the owner and government cannot otherwise agree on the dollar amount due for the taking. Florida law provides for a twelve (12) person jury to decide full compensation and business damages after listening to the evidence from both the government and the owner and the owner’s experts. Full compensation is the value of the land and improvements taken and severance damages or the diminution of the value of the remaining land as a result of the taking.
The property owner is not responsible for the cost of an attorney or other experts to represent him/her: The government must pay your reasonable expenses and fees for an attorney and other experts to represent you throughout the negotiation and eminent domain process.
Fee Taking – A fee taking is where the government takes all of the rights in a part or the whole of the landowner’s property.
Easement Taking – An easement taking is where the government only takes specific rights and leaves other rights in the land with the owner.
Full Compensation – The value of the land and improvements taken and severance damages. Full compensation also includes the payment of the owner’s attorney’s fees and reasonable expert fees by the government. The goal is to make the owner whole.
Owners – Owners of property are fee owners and tenants who have rights to use all or part of the property the government is taking.
Severance Damages – The reduction in value to the remainder property as a result of the taking.