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Eminent Domain Process

What is eminent domain?

Eminent domain is the power of the government to take private property. The Constitution limits the government’s power. The government may only take private property that is necessary for a public purpose and is required to pay “full compensation” for the taking of private property. An entity using the power of eminent domain is called a “condemning authority.”

What is “full compensation?”

The Florida Constitution guarantees that private property shall not be taken except for a public purpose and with full compensation therefor paid to each owner. “Full compensation,” within meaning of constitutional provision, seeks to place the owner in the same position financially as if there were no condemnation proceeding and the owner had retained ownership.

Am I entitled to recover attorney’s fees in an eminent domain action?

Yes. The condemning authority is required to pay your attorney’s fees in an eminent domain action. The amount of attorney’s fees paid are based on a formula in the Florida Statutes. Attorney’s fees are paid separately from any money you recover and do not reduce your recovery for the property taken.

Am I entitled to recover costs spent in an eminent domain action?

Yes. The condemning authority is required to pay your reasonable costs in an eminent domain action. Costs include invoices for services of experts (such as appraisers and engineers) and other expenses incurred on your behalf. Costs are paid separately from any money you recover and do not reduce your recovery for the property taken.

Who has the power of eminent domain?

The power of eminent domain is primarily held by the federal government, state government, counties, and cities. The legislature may also delegate the power of eminent domain to certain non-governmental entities such as public utilities. Private entities do not have the power of eminent domain.

How is the power of eminent domain exercised?

A condemning authority may exercise the power of eminent domain directly or indirectly. A condemning authority directly exercises the power of eminent domain when it files a law suit against a property or business owner. This type of law suit is called an “eminent domain action.” The property or business owner is made a defendant to the law suit.

A condemning authority indirectly exercises the power of eminent domain by taking property without first filing a law suit. This type of taking can occur through a physical use or invasion (such as flooding of the property) or through the application of a regulation (such as the denial of economically beneficial use of the property.) This type of taking is called an “inverse condemnation action.” The property or business owner is a plaintiff in an inverse condemnation action and is suing the condemning authority.

What is the general process of an eminent domain action?

In Florida, a condemning authority may file one of two types of law suits, known as “eminent domain actions:” a quick-take action or a slow-take action.

What is a “quick-take” eminent domain action?

A quick-take action is almost always the type of eminent domain action filed. It usually involves the taking of private property necessary for road construction projects. A quick-take action is divided into two stages. In the first stage, the condemning authority files a law suit and sets a hearing known as an”order of taking” hearing. At the order of taking hearing, the condemning authority must prove three things:

  • that the property is necessary,
  • that the taking is for a public purpose and
  • that it has prepared a good faith estimate of value based on a valid appraisal report.

Once the judge enters the order of taking, the condemning authority deposits the good faith estimate of value into the court registry and becomes the owner of the property. After the order of taking hearing, the second stage of the quick-take action begins. In the second stage, a twelve-person jury decides the amount of compensation to be paid the property or business owner for the taking.

What is a “slow-take” eminent domain action?

A slow-take action is rarely used. ┬áIt may involve the taking of private property necessary for parks or environmental preservation. In a slow-take action, the condemning authority files a law suit and a twelve-person jury decides the amount of compensation to be paid. After the jury renders its decision, the condemning authority chooses whether to acquire the property. If the condemning authority chooses to acquire the property, it then deposits the amount of the jury’s decision into the court registry. If the condemning authority chooses not to acquire the property, the judge dismisses the law suit.

What legal notices should I receive before an eminent domain action?

Florida law requires that all condemning authorities send business and property owners a written notice by USPS certified mail before filing an eminent domain law suit.

What date is used to value the interest in the property taken?

The date used to value the interest in the property taken is the date that title passes (in a quick-take, this is the date of deposit of the condemning authority’s good faith estimate of value) or the date of trial (in a slow-take), whichever occurs first.

What compensation is a tenant in the property paid for the taking of its interest?

The lease or other document creating the interest in the property may have a provision for eminent domain, called a “condemnation clause.” If there is no condemnation clause, Florida law provides that the condemnation award is to be allocated between the tenant and interest. If there is a condemnation clause, the provision will control whether the tenant can recover for the taking of its interest. If the tenant in the property is entitled to compensation for the taking, this compensation is usually be paid out of the money recovered by the owner.

Can an owner challenge the taking of private property by eminent domain?

Yes. An owner can challenge the taking of its private property by the power of eminent domain. If the challenge is successful, the judge may dismiss the eminent domain law suit.

Am I entitled to a copy of the condemning authority’s appraisal report?

Yes. Upon request, the law requires the condemning authority to provide you a copy of the appraisal report for its good faith estimate of value.

Do I have to accept the condemning authority’s offer?

No. You are entitled to obtain your own valuation prepared by experts retained on your behalf.

When does the condemning authority acquire title and possession to my property?

If the court grants the condemning authority’s petition in a quick-take action, it will enter an order of taking. Within twenty (20) days from entry of the order of taking, the condemning authority must deposit its good faith estimate of value into the court registry. Upon deposit of its good faith estimate of value, the condemning authority becomes owner of the private property and is entitled to possession. However, the owner can negotiate or petition to hold title to the property or possession of the property for a longer time if appropriate. Once the condemning authority owns the property, it cannot deed-back the property taken.

Will the eminent domain action be mediated before a jury trial?

Mediation is an informal negotiation process. Most judges require that an eminent domain action be mediated at least once before a allowing a jury trial. If the judge orders mediation, you will need to attend along with representatives from the condemning authority and a mediator.

A mediator does not favor one party over the other. A mediator is usually an attorney or a retired judge and is typically familiar with eminent domain cases.

At mediation, both parties will present their analysis of the case. The mediator will oversee the negotiations and try to have the parties reach an agreement. Neither party is required to accept the recommendations of the mediator. If the parties reach an agreement, the mediation agreement will be signed by the parties and the mediator will inform the judge.

What will happen at the jury trial of the eminent domain action?

An eminent domain jury trial usually lasts at least three days and sometimes up to two weeks. A jury of twelve persons is selected. The jury decides the facts of the case, including the monetary value. Once the jury renders its verdict of compensation, the judge enters a final judgment for the awarded sum.

 

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