What is eminent domain?

Eminent domain is the power of the government to take property for a public use without the owner’s consent. Eminent domain raises from the necessity of the government to take property for the public good and every owner holds title subject to the right of the government to take that property.

What is a taking?

A taking is when the government uses its power of eminent domain to acquire title to either a part or all of your property.

Who has the power of eminent domain?

The right to exercise the eminent domain power is delegated by the Florida legislature to the agencies of government and implemented as provided by laws enacted by the Florida legislative. Numerous sections of the Florida statutes authorize various governmental entities to use the power of eminent domain for specific purposes including counties, municipalities, regional transportation authorities, transportation and expressway authorities for limited access facilities and service roads, drainage and water improvement districts, school boards, etc.

Chapters 73 and 74 of the Florida Statutes establish the procedures generally applicable to eminent domain cases.

How can eminent domain affect you?

Eminent domain can affect your property if your property is located in the path of a road widening project, a new road project, a drainage project or where the government wants to construct other public uses such as parks, schools, prisons, colleges, airports and many others. 

Can I stop the government from taking my property?

We can stop a taking by eminent domain if the government does not meet the legal requirements to take your property. To take property by eminent domain, the government must follow specific procedures, prove they need the property for a public purpose, and have prepared a good faith appraisal. Also, the government must be willing to deposit money into the court registry equal to the estimate of value in its appraisal as a good faith deposit to protect the property owner’s interest in the land the government is taking. 

How does the state acquire my property?

To acquire your property, the government has to use a process called eminent domain and follow the applicable substantive and procedural laws provided for in Florida’s statutes and common law. The government can only take your property if it needs it for a public purpose. The government cannot take your property in Florida for a private use or take more than it needs for a public purpose.

What compensation is recoverable from the government when it takes my property by eminent domain?

The government exercising its power of eminent domain is required to pay you compensation for the following:

  1. value of the land taken;
  2. the value of the improvements taken;
  3. the reduction in value to the remaining property as a result of the taking referred to as severance damages; and
  4. costs to remedy the reduction in value caused by the taking referred to as cost to cure.

What is full compensation?

Full compensation includes the four (4) items above AND attorney’s fees and costs and expert’s fees and costs.

What are severance damages?

Severance damages are the reduction in value to your remainder property caused by the taking.

Is the government required to value my property and pay me for the property it is acquiring based on its current use?

No, the government is required to value your property and pay you for the property it is acquiring based on its highest and best use.  Highest and best use is defined by real estate appraisers as the highest and most profitable use for which the property is adaptable and needed, or is likely to be needed currently or in the near future.

What is highest and best use?

Highest and best use is defined by real estate appraisers as the highest and most profitable use for which the property is adaptable and needed, or is likely to be needed currently or in the near future.

Who pays my attorney’s fees?

The condemning authority pays your attorney’s fees. A land owners attorney’s fees are paid and calculated according to a statutory formula which provides for calculating attorney’s fees based on the monetary benefit your attorney obtains for you above the First Written Offer made to you by the government.

How do I find an appraiser for my eminent domain case and who should I use as my appraiser?

Your eminent domain attorney knows and has worked with specially trained and experienced eminent domain appraisers. Your eminent domain attorney will introduce you to an eminent domain appraiser who is the right appraiser for your case.

Won’t the government treat me fairly under the eminent domain laws?

No, not necessarily. The government’s job is to build their project, and they often miss or ignore things that impact your rights and the compensation you are due for a taking. You need to hire an eminent domain attorney who will make sure the government treats you fairly according to the law.

Should I accept the offer the government gives to me for the property it is taking?

No, you should not accept an offer the government gives you for your property until you have the taking and offer analyzed by your eminent domain attorney to determine if you are being paid according to the law.

Who pays for my appraiser and other experts who evaluate my case to determine value?

The condemning authority is required to pay reasonable expert fees and costs for you to have your own experts evaluate your case and determine the appropriate value for the taking.

Is there any penalty to me for not voluntarily selling my property o the government?

No, in fact, you may receive more compensation if you do not sell your property voluntarily to the government but assert your rights of Full Compensation in an eminent domain lawsuit.

I have received letters from eminent domain attorneys wanting to represent me. What criteria should do I consider in selecting an attorney?

You should consider experience, specialization, and familiarity with the appropriate eminent domain experts and condemning authorities.

Will I be treated fairly by the government when it seeks by property by eminent domain?

There is no guarantee the government will treat you fairly in an eminent domain taking. You need to hire your own attorney who will make sure your legal rights are protected and the best experts are hired for you to provide accurate and up to date information about the value of your property and the impact it will have on your remainder property and/or any businesses operating on it.

Can I recover compensation if the government’s acquisition by eminent domain, makes my property non conforming under zoning, land development codes, approved site plans or permits such that my property no longer has the required setbacks, parking requirements, drainage, landscaping, etc.?

Yes, the government is required to compensate you for any value lost in your property (severance damages) as a result of the government’s taking

Does the government have to compensate me if the government’s taking negatively impacts the business operated on the property from which the government is taking property?

Yes, the government has to pay business damages to a business owner who has a business that has been operating on your property for 5 years or more from the date of taking

Can I receive compensation if the government’s taking makes my driveway less accessible to trucks or cars getting on or off my property than before a taking?

Yes, many times you have a right to receive compensation if a taking negatively impacts the accessibility of a driveway for trucks and cars to get on or off your property.

Can I receive compensation if my property is negatively impacted by a road project but I do not have a physical taking from my property?

No, only property which has an actual physical taking, no matter how small, can recover compensation even if your property is negatively impacted by a road project.

Is there compensation which I can recover from a taking which may not be readily apparent from a taking?

Yes, which is why you should hire an eminent domain attorney who knows what to look for when evaluating your property and the impacts from a taking by eminent domain.

After reading this, you probably still have unanswered questions. We invite you to contact us directly with any questions. We, as skilled and experienced eminent domain lawyers, can make sure your questions are answered correctly and give you reliable advice. We will talk with you about your case, analyze it and represent you at no charge.