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Eminent Domain

 
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THESE QUESTIONS AND ANSWERS ARE BASED ON EMINENT DOMAIN PROCEEDINGS BROUGHT UNDER FLORIDA LAW IN FLORIDA STATE COURTS.  A LANDOWNER’S AND BUSINESS’ RIGHTS AS WELL AS THE PROCEDURES USED IN FEDERAL COURT AND OTHER STATES WILL LIKELY VARY (SOMETIMES VARY GREATLY) FROM WHAT IS DESCRIBED HERE.

What is eminent domain/condemnation? Eminent Domain is the power, typically exercised by state, county, and municipal agencies and utility companies such as electric and gas companies, to take private property for a public purpose in exchange for the payment of full compensation.  Condemnation is the process these entities use to acquire property.  Entities with the power of eminent domain are often referred to as condemning authorities.  If you don’t agree to sell your property, the condemning authority exercises its eminent domain authority by filing a lawsuit, referred to as an eminent domain proceeding, to acquire it.

Why should I hire a lawyer in an eminent domain matter?  In the lawsuit filed by a condemning authority, an attorney will represent it in any litigation of the appropriateness of the taking of your property and the amount of compensation to be paid to you.  If I represent you, I can advise you on the appropriateness of the taking and/or help you obtain the full compensation to which you are entitled.  The condemning authority will hire an appraiser and possibly other experts to obtain an opinion of full compensation for your property and/or usiness damages and will make you an offer based upon this opinion(s).  I can assist you in selecting a qualified appraiser and other experts who can give you a second opinion.  I can then negotiate and, if necessary, litigate and represent you in a jury trial to determine the amount of full compensation and/or business damages.

There are often things you may be able to do before the filing of an eminent domain proceeding to protect or improve your ability to receive the compensation and/or the business damages you are entitled to. By example, leases often have a condemnation clause which spells out how the condemnation award is apportioned between landlord and tenant.  Also, the business damages which a business tenant may be able to recover may be limited by the duration of the lease.  In many instances, you may be able to renegotiate lease provisions and/or the duration of a lease to improve your ability to obtain full compensation and/or business damages.  There is also deadline to claim business damages. If your business is eligible to make such a claim, I can help you make sure your claim is timely filed.

Finally, without a skilled attorney on your side you may not become aware of certain issues that might affect the value of your remaining property and your business and you may not be paid the proper compensation for these issues.

Will I have to pay any attorney’s fees and/or other fees and expenses?  No.  Under Florida law, a condemning authority is required to pay the landowner’s and eligible business owner’s attorney’s fees and expert fees and costs including the fees of necessary appraisers, accountants, land planners, and engineers.  These fees and costs are in addition to the compensation and business damages paid.  Therefore, you can hire my firm at no cost to you.

Why does it matter if the lawyer is Florida Bar board-certified lawyer?  You may be solicited by several lawyers and law firms. Why should you hire me and not them?  The reason is that, as stated above, if you cannot come to an agreement with the condemning authority, the amount of compensation and/or business damages you receive will be determined in a jury trial. Many of the lawyers who communicate with you may describe themselves as “trial lawyers” or use similar terms meant to suggest that they have some special competence in obtaining full compensation through our court system.  However, just over 1,000 Florida lawyers, or a little more than 1 percent of the more than 90,000 Florida lawyers, are Board Certified by the Florida Bar, which regulates the practice of law in Florida, as Civil Trial Lawyers.  Only Florida Bar Board Certified Civil Trial Lawyers are allowed by the Florida Bar to identify themselves as specialists or experts in the trial and litigation of civil cases.  Eminent domain proceedings are a type of civil case.

The requirements to become a Board Certified Civil Trial Lawyer include having had a sufficient number of trials including jury trials, passing an examination, and obtaining positive reviews from other lawyers and judges.  While most eminent domain cases are settled, some are not and, if your case does go to trial, it is a good idea to have an attorney who is certified as an expert in the trial and litigation of civil cases representing you.  Even if your case does not go to trial, you are more likely to get a satisfactory settlement of your case if the party and lawyers on other side know you have an attorney representing you who is ready, willing, and able to try your case.  I am also Board Certified by the Florida Bar in Business Litigation. This is particularly important in business damage cases.

When should I hire an attorney? You should hire an attorney at the earliest opportunity after you become aware that your property may be acquired for a public project.  This is important because, as stated above, I can assist you with precondemnation planning and put you in the best position to obtain the compensation and/or business damages you deserve as well as, if applicable, make sure your business damage claim is timely filed.

Is the taking of my property automatic?  In order to take property, a condemning authority must demonstrate to a court that it is acquiring the property for a public purpose, that the quantity of property and the interest in the property (e.g., ownership or easement) proposed to be acquired is reasonable for that public purpose, that the condemning authority has obtained a valid appraisal, and that it has complied with various requirements such as making a good-faith offer to the property owner and having a proper resolution of the condemning authority’s governing board before filing suit.  Often, the entity seeking to use the power of eminent domain must also show that it considered alternative routes or locations and, therefore, the acquisition of other property for a road, pipeline, or transmission line or other project.  In Florida, condemning authorities used to be able to acquire property if it was in an area considered “blighted.” However, this is no longer the case and the use of eminent domain power is restricted to purposes which confer more traditional public benefit such as roads, schools and other public buildings, airports, and utilities such as electric transmission lines and gas pipelines.  A judge will decide whether the condemning authority is properly using its eminent domain power and, if the condemning authority cannot demonstrate all of the above elements, can deny acquisition of the property.  Defeating the condemning authorities proposed acquisition is not typical but, while every case is different, I have successfully challenged eminent domain takings in the past.

When will I be notified that an entity wants to acquire my property?  Typically, you will hear about the proposed acquisition in any number of ways long before a condemning authority take steps to use its eminent domain power.  In many cases, the entity seeking to acquire your property will hold a public hearing or informational meeting at which you can learn more about the project and the proposed acquisition of your property.  Florida law requires condemning authorities to send landowners written notice by certified mail and make a good-faith offer to purchase the property at least thirty (30) days before filing an eminent domain lawsuit.  The notice must advise the landowner that the condemning authority will seek to acquire the property and of the owner’s rights under Florida law.  Businesses must also be notified of their rights under Florida law including the right to make a claim for business damages prior to suit being filed.

What am I, as landowner, entitled to be paid when the government or a utility takes my property?  The Florida Constitution provides for the payment of full compensation for property owners whose property is acquired by the power of eminent domain.  Full compensation includes, but is not limited to, payment of the fair market value of the property (including land, buildings and other improvements, and fixtures) taken, for any damages to the remaining property due to loss of utility, parking, access, drainage etc., and, moving costs. These damages to the remaining property are often referred to as severance damages.  As discussed above, full compensation includes payment of attorney’s fees and expert fees and costs.

What is my business entitled to be paid in an eminent domain matter?  Many businesses are also entitled to be paid for the damage to, or destruction of, the business caused by the taking.  To be eligible to receive business damages: (i) the business must hold an interest, either as an landowner or as a tenant, in the portion of the property being acquired; (ii) the acquisition must be by the Department of Transportation, county, municipality, board, district or other public body (typically,  utility companies do not have to pay for business damages) for a right of way (typically for a road or a canal); (iii) the taking must be of a portion, but not all of, the property on which the business is operating; (iv) the business must be operating on the site for at least five (5) years prior to the acquisition; and (v) the damages or loss must result from the taking of property.

If your business is eligible to claim business damages, it will have to make an offer to settle its claim within 180 days after your business receives notice of its right to make such a claim.   If the offer is not presented by this deadline the business’ ability to make a claim may be barred.

Do I have to accept the amount of compensation for the property and/or business damages being offered to me?  No. You have the right to hire an appraiser and other experts necessary for you to obtain an independent opinion and negotiate with the condemning authority regarding the amount of compensation and/or the amount of business damages to be paid.  If an agreement cannot be reached, you have the right to have a trial by jury to determine the amount of compensation for the property and/or the amount of business damages you are entitled to.

Please feel free to contact me for a consultation with no cost or obligation to you toll-free at 866-452-9400 or at 561-293-7603 or by E-mailing me by filing in the boxes above.


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