The Guide to Eminent Domain in Florida
If the government is taking your land, make sure that you become informed so that you know what you can and cannot do. Your initial question might be, can I stop the process? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading through to learn about the Florida eminent domain process, your rights as a property owner and hiring a Florida eminent domain attorney.
Eminent domain is a specialized area of real estate law and very few attorneys can claim expertise. Our lawyers have the experience necessary to identify damages that lead to a higher amount of compensation, and they can effectively interface with the condemning authority and work the legal system to help you obtain just compensation. We’ve handled cases for property owners in South, Central and North Florida, and we’re experienced trial lawyers, so we won’t hesitate to take your case to trial of negotiations cannot be reached.
Florida law directs the government to pay property owners attorney’s fees and costs in eminent domain cases. Florida property owners are also entitled to relocation benefits and business damages. Call us for more information about your case and continue reading to learn more about the Florida eminent domain process, your rights as a property owners and hiring an attorney.
Florida Eminent Domain Process
In the state of Florida, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Florida eminent domain process.
Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.
The majority of eminent domain cases in Florida meet the requirement for public purpose and necessity. Examples of cases that meet these criteria are: property acquisition for highway improvement projects, and acquisitions for utility projects such as installation of power lines and sewer systems.
If the taking of your property meets the requirements for public purpose or public necessity, then continue reading to learn more about the eminent domain process in the state of Florida. Please note that there are extended explanations for all of the numbered sections in the flow chart. Additionally, links to specific state statues are also provided, where applicable. Please be aware that the flow chart and explanations are simply an overview of the process and should not be used as a tool to take matters into your own hands.
The chart below details Florida’s eminent domain process:
1. Government Announces Project and Properties Affected
Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.
2. Government Inspects & Values Property
Before the condemning authority makes an offer, they must determine the value of the property being taken, and whether or not the taking results in damages to the remaining land. This valuation is determined by an appraiser, and is then reviewed by the condemning authority before an offer is made.
3. Property Owner Hires Attorney
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.
4. Government Makes Offer to Property Owner
When the condemning authority makes an offer of compensation to the property owner, they must include (select the statute link for the complete list of items that must be included) the amount of land to be acquired, details regarding the nature of the project where the property is to be used, and that, within 15 business days after receipt of a request by the property owner, the condemning authority will provide a copy of the appraisal report used to determine the offer of just compensation; along with ROW plans and construction documents. (Fl. Stat. § 73.015(3))The condemning authority must include a written offer of compensation that reflects the value of the property being acquired; if only a portion of the property is taken, they must include damage amounts to the remainder. If the owner does not accept the offer within 30 days of receipt, the condemning authority can file a condemnation proceeding. (Fl. Stat. § 73.015(5)(b))If the property being acquired is business owner or operated, the condemning authority must attempt to contact the business owner or operator, including lessees, to provide notification of the property in question being acquired. (Fl. Stat. § 73.015(2)) If the business qualifies for business damages pursuant to Fl. Stat. § 73.071(3)(b)), and they intend to claim these damages, then the business must, within 180 days after receipt of the notice of acquisition, submit to the condemning authority a good faith written offer to settle any claims of business damage. (Fl. Stat. §73.015 (2)(c)) The condemning authority must accept, reject, or make a counteroffer with in 120 days after receipt of the good faith business offer. Failure of the condemning authority to respond or to reject the offer must be deemed as a counteroffer of zero dollars for subsequent action. (Fl. Stat. §73.015 (2)(d))At any time during the negotiation process, the parties may agree to submit the compensation or business damage claims to nonbinding mediation. (Fl. Stat. § 73.015(3)) If a settlement is reached prior to the lawsuit being filed, attorneys fees are recoverable as provided in Fl. Stat. §73.091 and Fl. Stat. §73.092
5. Attorney Evaluates Offer
After the condemning authority makes an offer, the property owner’s attorney will evaluate the appraisal and offer to determine if it represents just compensation. If the attorney finds errors in the condeming authority’s valuation, then they will determine how best to proceed.
6. Determine Negotiation Strategy
Prior to commencement of an eminent domain proceeding, the condemning authority must make a good faith attempt to negotiate a transaction with the property owner. The condemning authority must provide a written offer with the negotiation attempt for the property owner, and if requested, the condemning authority must provide a copy of the appraisal for the property owner. (Fl. Stat. § 73.015(1))
7. Select Appraiser to Determine True Property Value
After the condemning authority makes an offer, the property owner’s attorney will evaluate the appraisal and offer to The condemning authority shall pay all reasonable appraisal fees on behalf of the owner, whether or not the matter proceeds to trial. (Fl. Stat. § 73.091(1)Selecting an appraiser who can accurately value your property and assess the damages to any remaining parcel is one of the most critical steps in any eminent domain claim. Many times, property owners try to take matters into their own hands, and unknowingly hire an inexperienced appraiser. Unfortunately, this step could ruin a good claim. Visit our Resources page, under Why Act Now to read an example of how hiring the wrong appraiser can hurt your claim. Make sure you consult with an eminent domain attorney before hiring an appraiser on your own.
8. Property Owner Settles with Government
If the property owner signs the final settlement papers, they waive their right to pursue additional damages and the case is complete. A property owner should only sign the final settlement papers if they are satisfied with the government’s offer.
9. Deed is Transferred
Once the final settlement papers are executed by the property owner, the deed is transferred to the condemning authority. It is at this time that ownership is transferred from the property owner to the condeming authority.
10. Owner’s Case is Done
The owner is paid in full, the condeming authority owns the property, and the owner’s case is completely done. The property owner can no longer file a claim to challenge the taking or to receive additional compensation.
11. Property Owner Does Not Accept Offer
If, after negotiations, the property owner is not satisfied with the amount offered by the condeming authority, they can refuse the offer and allow condemnation to occur.
12. Government Commences Condemnation Proceedings
The condemning authority may file a petition for condemnation within the circuit court where the property lies. (Fl. Stat. § 73.021) Once the petition is filed, the clerk of the court will issue summons to show why the property should not be taken, directed “to all whom it may concern,” containing the names of all the property owners identified in the petition, commanding them to serve written defenses to the petition on a day specified in the summons not less than 28 nor more than 60 days from the date of the summons. (Fl. Stat. § 73.031 (1))
13. Trial Conducted Before 12 Person Jury
The condemning authority may offer judgment prior to the trial commencing (Fl. Stat. § 73.032 (2)). The offer will be deemed rejected unless accepted by filing both a written acceptance and the written offer with the court within 30 days after service of the offer, or before the trial begins if less than 30 days (Fl. Stat. § 73.032 (3)(c)). The property owner may also make an offer of acceptance to the condemning authority, but only if the amount is less than $100,000. If the property owner makes an offer, it must also be filed no later than 20 days prior to trial. If an offer is rejected by either party, the offer is then terminated and the case goes to trial. (Fl. Stat. § 73.032 (c)) If the property owner elects to accept the judgment offer and their acceptance has been filed with the court, then the owner’s case is done. If the offer of judgment is not accepted, the court will impanel a jury of 12 persons to determine just compensation. (Fl. Stat. § 73.071)The verdict of the jury shall state an accurate description of each property and the amount to be paid, together with any damage to the remainder caused by the taking and including business damages when allowable by statute. When severance damages, business damages, moving costs, separate compensation for permanent improvements made by a mobile home owner under Fl. Stat. § 73.072, or other special damages are sought, the verdict shall state the amount of such damages separately from the amounts of other damages awarded. (Fl. Stat. § 73.081) Within 20 days (or up to 60 if the court allows it) of judgment of compensation awarded, the condemning authority must deposit the award with the registry of the court. Upon payment, title and vestment of the property resides with the condemning authority. (Fl. Stat. § 73.111)
The eminent domain process in the state of Florida is complicated, and if you are undergoing eminent domain and want to make sure you are justly compensated, you should speak to an eminent domain attorney. Speaking to an eminent domain attorney regarding your case will keep you informed of your rights, the eminent domain process, and whether or not your attorney’s fees will be paid for by the state of Florida.
Florida Property Rights
The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.
Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership. The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity. While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.
The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws. The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition gives Florida a letter grade of an A for property rights, here is what they say:
“In 2006, the Florida Legislature proved that it understood the public outcry caused by the Supreme Court’s abandonment of property rights. Florida created a legislative commission to study the use of eminent domain and ways of reining in abuse, then passed House Bill 1567 with an overwhelming majority. The new law signed by the governor requires localities to wait 10 years before transferring land taken by eminent domain from one owner to another—effectively eliminating condemnations for private commercial development. HB 1567 also forbids the use of eminent domain to eliminate so-called blight, instead requiring municipalities to use their police powers to address individual properties that actually pose a danger to public health or safety.”
“Not content with mere statutory protections, the Florida Legislature also put a constitutional amendment on the November ballot so that the state’s citizens could make sure that these reforms could not easily be stripped away. The new amendment, which was approved in a landslide, requires a three-fifths majority in both legislative houses to grant exceptions to the state’s prohibition against using eminent domain for private use.”
“Thanks to these sweeping reforms, Florida has gone from being among the worst eminent domain abuse offenders to offering some of the best protection in the nation for homes, businesses, and houses of worship that formerly could have been condemned for private development. HB 1567 and Florida’s new constitutional amendment should be models for other state legislatures. They prohibit takings for private benefit while still allowing the government to condemn property for traditional public uses such as roads, bridges, and government buildings.”Castle Coalition
Hiring an Eminent Domain Attorney in Florida
The most blatant form of eminent domain abuse occurs when the government or condemning authority makes a ‘low ball’ offer. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. Fortunately, the vast majority of eminent domain attorneys work on a contingent fee basis, meaning they charge a percentage of the additional money they obtain for the property owner. Also, Florida has passed legislation requiring the condemning authority to pay the property owner’s attorneys fees and costs in eminent domain cases.
Very few attorneys can claim expertise in the area of eminent domain law. To determine if you have a case, make sure you consult with an eminent domain trial attorney who can effectively identify damages and select the necessary experts. Your attorney should also be able to interface with the condemning authority and be willing to take your case to trial if negotiations can not be reached.
Did you know that in the state of Florida, attorney fees and costs must be paid for by the government if the final award is more than the offer made by the government? Continue reading to learn more about this statute.
Attorney Fee Recovery Statutes in Florida
Attorney’s fees may be recovered in the state of Florida if:
- The judgment exceeds the last written offer prior to an attorney being hired. Or, if no written offer is made before hiring, the first written offer after attorney is hired. (Fl. Stat. § 73.092(a))
- The settlement exceeds the last written offer prior to an attorney being hired. Or, if no written offer is made before hiring, the first written offer after attorney is hired. (Fl. Stat. § 73.015(4))
Attorney’s fees based on benefits shall be awarded in accordance with the following schedule:
1. 33% of any benefit up to $250,000; plus
2. 25% of any portion of the benefit between $250,000 and $1 million; plus
3. 20% percent of any portion of the benefit exceeding $1 million.
The state of Florida has the highest letter grade rating because of the multiple constitutional amendments in place that eliminate the possibility of using eminent domain to acquire blighted property for commercial use or redevelopment. Click to visit the Florida House of Representatives page which allows you to look through the bills passed that concern eminent domain over the past few years.
When Jeb Bush signed legislation banning eminent domain for private development, thousands of property owners were about to lose their homes when the City of Riviera Beach decided to condemn their property for a massive waterfront redevelopment project. The property owners won their case in 2008 when the City of Riviera Beach abandoned their plan on the basis of having no authority to acquire property through the use of eminent domain. Florida’s legislation change was passed in time to save these thousands of homes and likely prevented the condemnation of thousands more around the state.
While many states continue to follow the 1950’s Supreme Court ruling that ‘blight’ constitutes a public use, Florida has risen above this standard by declaring that ‘blight’ is no longer an endeavour that satisfies the public use requirement. Eminent domain can only be used for purposes such as road improvement projects, utility projects, construction of public libraries or jails, ect. As a result of these legislative changes, Florida property rights rank in the top across the nation.
As you are likely aware, taking matters into your own hands when it comes to eminent domain is highly discouraged, and could result in a scenario where you do not receive just compensation. For instance, you could end up ruining a good claim by attempting to negotiate with the condemning authority prior to consulting with an eminent domain attorney, or you might settle for much less than what you deserve.
Recent Eminent Domain News and Projects in Florida
In most states, eminent domain will not compensate for business value (net profits) or the loss of business value. Typically in eminent domain, a property owner is only entitled to compensation for the land taken, damages to the remainder (severance damages), and relocation benefits where necessary and applicable. There are of course exceptions to this
Questions about Florida Eminent Domain Law or if you’re interested in a free consultation, contact us today! If you want to call us, our main number is 866-339-7242. We look forward to hearing from you.