We hope that you will find this information helpful. Should you have specific questions regarding your individual situation, call us. We will gladly discuss your case with you free of charge.
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Condemnation is the process by which private property is taken by government for some public purpose under the power of eminent domain. The governmental entity may be the Florida Department of Transportation, a County or municipality, a local school board, water management agency or public utility company. By far the most common use of the power of eminent domain is for the acquisition of property to build or expand roads. The taking may also be for the construction of facilities attendant with a particular road project, such as drainage, retention ponds or wetland mitigation. Condemnation is also frequently used for the creation or expansion of public facilities such as schools, parks or utility systems.
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Federal, state and local governments have the power to condemn private property. This power has been delegated to many governmental agencies such as the Florida Department of Transportation. The government has also delegated the power of eminent domain to public utilities and in certain, very limited situations, to private companies and individuals.
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The United States and Florida Constitutions protect private property rights. You can contest the taking of your property, but if a judge rules that your property may be taken, your constitutional right is to receive full compensation for your property. Full compensation is a practical attempt to make the property owner whole. This means that you are entitled to be put in the same financial position after the taking of your property that you were in before your property was taken.
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Florida has a long tradition of upholding the right to own private property. You have the right to hire an attorney and other experts, such as real estate appraisers, accountants or engineers who specialize in eminent domain cases to evaluate and, if necessary, contest and litigate the condemning authorities estimate and offer of full compensation. The Florida Constitution requires that the government or condemning authority pay reasonable attorneys’ fees and costs, including expert witness fees, associated with the taking of private property. The intent of this requirement that the government pay for the owner’s attorneys’ fees and costs is to put the property owner on an equal footing with the government.
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Once you have received your compensation for the taking, the award of attorneys’ fees and costs is determined by the court. The award of attorneys’ fees is primarily based on the benefits over and above the original government offer that the attorneys are able to obtain on behalf of the client.
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Frequently, the first notice a property owner will receive regarding a potential condemnation action is a newspaper advertisement or other notice advertising a public meeting or information workshop. These public hearings are generally held by the condemning authority well in advance of the initiation of actual condemnation proceedings and are a necessary part of the governmental planning process. Property owners, or their representatives, may attend these meetings and can gather information about a pending project. Once the condemning authority has completed the planning phases of a particular project and has designated certain properties for acquisition, a real estate appraiser is hired by the condemning agency to make an appraisal of the property sought to be acquired. An offer to purchase is then made to the property owner based upon the agency's appraisal. If the offer is not accepted and other negotiations fail, an eminent domain suit is then filed with the circuit court in the county in which the property is located naming the property owner as a defendant. If no settlement is reached during the litigation as to the amount of compensation, then the matter is set for trial before a twelve member jury, whose verdict will determine the amount to be paid.
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No, but the government taking of private property is very difficult to stop. In order to acquire title to the property, the governmental agency must demonstrate to the court that the taking is necessary for the project and is being acquired for a valid public purpose. The condemning authority must also show that it has done what is called a “good faith” estimate of value. In most cases, if this minimal burden has been met, government is entitled to take possession of the property upon deposit into the court registry of the government’s appraised value. The property owner may then withdraw the deposit (subject to any other interests, such as mortgages) and may then contest the amount of full compensation which should ultimately be paid.
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No. The government can only take as much of your property as the court finds is reasonably necessary to accomplish a public purpose.
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Obviously, each property and each case differs. However, there are some general rules which apply in all condemnation proceedings. The property owner is, of course, entitled to be paid for the land and improvements which have actually been taken. If only a portion of the property has been taken, the owner is also entitled to what are known as "severance damages" to the remaining property. Severance damages may be defined as a decrease in value of the remainder property as a result of the taking, and can include such factors as lost parking, loss or substantial impairment of access, drainage problems caused by the taking, reduction in development potential or other consequences of the taking which make the remainder property less valuable. Additionally, if there is a business which has been operated on the property taken and on the remainder property for at least five years, the business owner may be entitled to business damages over and above any amounts awarded for the land taken and severance damages. Obviously, these concepts and elements of potential damages can be extremely complex according to the facts and law applicable of each particular case. Each case, therefore, requires a thorough evaluation by experts working on behalf of the property owner to ensure that all elements of compensation have been considered and that the full amount is being paid for each element.
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a. There are several actions an owner may take before his property is taken. Because the owner’s actions may help or hurt his case, it is wise for an owner to immediately seek the advice of an attorney when considering pre-condemnation actions.
b. The owner should avoid taking positions, especially written positions, which may be used against him in the condemnation proceeding. If the owner contests his tax assessment, for example, that may be used against him in the condemnation case if the owner thereafter asserts a higher value.
c. Do not discuss any issue pertaining to the value of your property with anyone without first consulting an attorney. Unlike other areas of civil law, in eminent domain the government is your opponent - not your protector. What you say may be used against you at a later date.
d. The owner should maintain the appearance and condition of the property. Visual impressions, even to sophisticated professionals, are important, and appraisers and other experts will be inspecting the property before it is condemned. It is in the owner’s best interest to have the property looking as good as possible.
e. Contamination on the property may reduce the final award, delay the payment of funds to the owner or result in the owner’s liability for cleanup charges. An owner should consult with an attorney and take whatever steps necessary to assure that the property remains free of contamination.
f. The value of the property is often enhanced by favorable land use permits. The securing of a rezoning, plat approval or building permit may result in a higher valuation of the property. The decision of whether to apply for such permits must always be weighed against the effect which a potential denial will have on the case. It is thus wise to seek the advice of an attorney before proceeding with a land use application.
g. As leases and mortgages are negotiated, provisions known as “condemnation clauses” may be included. A condemnation clause spells out the specific rights of all parties to the agreement in the event a portion or all of the property is condemned. Because the condemnation clauses may affect the division of the final award, the owner’s attorney should be consulted on the condemnation clauses contained in these documents.
h. Do not supply copies of leases, expense records, profit and loss statements or similar documents to the government or its representatives until you have referred such requests to your attorney.
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Given that the amount of compensation you receive from the taking of your property or business can be one of the most significant financial events in your personal or corporate life, it is always advisable to consult with a knowledgeable and specialized attorney, even if your case appears on the surface to be relatively simple. There are many elements of compensation and potential areas of concern which should be addressed prior to any settlement or resolution of your claim, and, in some circumstances, failure to comply with certain statutory deadlines prior to the filing of suit can result in the waiver of some claims. Involving an experienced attorney early in the process can ensure that all claims are properly preserved. Additionally, our early involvement can sometimes result in certain modifications or considerations in the project design which may greatly enhance the value of any remaining property with respect to issues such as access or drainage. At Helinger DeYoung we provide our clients with guidance throughout the pre-suit negotiation process and have the experience and resources to fully represent the owner's interests in the event suit is ultimately filed. We are able to retain and coordinate the services of other experts, such as engineers, real estate appraisers, CPAs, land planners and surveyors which may be needed to fully evaluate and present your case.
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By the time you receive notice that your property may be taken, the condemning authority already has its lawyers and engineers involved. The sooner you hire your attorney, the better they can begin protecting your rights.
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No. Because eminent domain law is complex, property owners may say something in negotiations that they think helps their case when in fact it prejudices their right to receive full compensation. Similarly, property owners lacking experience in eminent domain matters may overlook elements of compensation to which they are entitled.
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The government will file a lawsuit to condemn the portion of your property needed to construct its public project. You are entitled to a hearing on the government’s right to take your property. If the court grants the government the right to take your property, then an Order of Taking will be entered. The government will then deposit its offer or “good faith estimate of value” into the court registry.
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Your attorney will file a motion and schedule a hearing. The motion will ask the court for permission to withdraw the money and disburse it to the owner. The motion and notice of hearing will be sent to all parties who have an interest in your property (mortgagees, tenants, lien holders, etc.).
At the hearing, anyone who has an interest in the property may make a claim to the funds deposited by the condemning authority. Prorated real estate taxes and special assessments are also deducted and paid to the appropriate officials before the owner’s balance is determined and disbursed.
If it is not possible to make a precise apportionment of the Order of Taking deposit, the funds will be placed into a joint interest-bearing account. These funds will be disbursed to the parties at the conclusion of the case, after the court enters a final order of apportionment or the parties are able to reach a settlement agreement.
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Yes. Your withdrawal of the Order of Taking funds is without prejudice to your final claim. This means that neither the amount of the government’s deposit nor the fact that you use it during the case can be used against you in the trial. Once you withdraw the funds, however, there is nothing to prevent the government from presenting testimony at trial that is lower than the deposit.
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A jury will decide. State law provides that a jury of twelve persons determines the amount of compensation to be paid to an owner who loses his property through condemnation. You are entitled to be paid for the value of your property taken, damages to your remaining property caused by the taking and under certain circumstances, damages to your business caused by the taking.
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The date for surrender of possession depends upon whether the acquisition is accomplished by a sale of the property in lieu of condemnation, or by a court Order of Taking. In no event will an owner be required to surrender possession of his property until either he agrees to a certain date, or the judge sets a date.
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Yes. Under Florida law, a tenant is also considered an owner of property and is entitled to the same constitutional protections as the fee simple owner.
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Florida has a business damage statute which allows an owner of a business to recover compensation for business damages if part of his property is condemned.
In order to qualify under this statute, however, the business owner must meet four tests.
1. The condemnation must be undertaken by a public body, rather than a public utility. For example, an owner whose property is condemned by a county would qualify, while another owner whose property is condemned by Florida Power may not.
2. The condemnation must be for a right-of-way. An owner whose property is condemned for the construction of a road, for example, may qualify, but an owner whose property is condemned for a school may not.
3. The taking must be a "partial taking," that is, a taking of only a portion of the property, and the business affected must be located on both the property and on the remaining property.
4. The business must be established at the specific location that is being condemned for at least 4 years prior to the taking. If a business owner does not meet each of these requirements, it is probable that he will not be able to recover compensation for business damages, even if the taking damages his business operation.
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Because a condemnation is considered an involuntary conversion, it is treated differently from voluntary sales. You will have a period of time to reinvest the condemnation proceeds and defer any tax obligation until a later date.
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Yes. At Helinger DeYoung, because of our reputation and experience, we are able to settle the majority of our cases out of Court.
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Florida has a long tradition of upholding the right to own private property. You have the right to hire an attorney and other experts, such as real estate appraisers, accountants or engineers who specialize in eminent domain cases to evaluate and, if necessary, contest and litigate the condemning authorities estimate and offer of full compensation. The Florida Constitution requires that the government or condemning authority pay reasonable attorneys’ fees and costs, including expert witness fees, associated with the taking of private property. The intent of this requirement that the government pay for the owner’s attorneys’ fees and costs is to put the property owner on an equal footing with the government.