What are eminent domain and condemnation?
Eminent Domain is the power of a government agency to take private property for a public purpose. The Fifth Amendment of the U.S. Constitution provides that no private property be taken for public use without just compensation. Article X, Section 6 of the Florida Constitution provides that no private property shall be taken except for a public purpose and with full compensation therefore paid to each owner. Compensation is the exercise of the power of eminent domain. Most federal, state, and local government agencies have the power of eminent domain. Quasi-governmental entities such as utilities, railroads, and special districts may also be delegated the authority to exercise the power of eminent domain. The goal of eminent domain and condemnation in Florida is to acquire right-of-way that is necessary for public projects or purposes while at the same time making the property owner whole. Compensation to property owners may include compensation for the part taken, damages to the remaining property, cost-to-cure qualified business damages, and other costs reasonably necessary to make the owner whole. The cost of attorneys, appraisers, accountants, engineers, land planners and other professionals reasonably necessary to assist owners in their defense are also paid by condemning authorities in addition to the compensation paid to the property and/or business owner.
How does the process work?
Before the condemnation process begins, the government, or a condemning authority, analyzes the proposed public project. Once the project is defined, the necessary property to be acquired is identified. Then the condemning authority hires engineers, land planners, appraisers, and other experts to evaluate the property to be acquired to estimate compensation. If only a portion of a particular property is to be taken, the appraiser may also consider whether the remaining property not taken is damaged.
Once the appraiser for the condemning authority estimates the compensation, an agent representing the condemning authority presents the first offer to the property owner. If a qualified business located on a property is damaged by a partial taking, the business owner must initiate the claim for business damages and make the first offer to the condemning authority. Usually, this will require an accountant’s assistance.
If the owner and the condemning authority are unable to agree on the value of the property to be acquired, the condemning authority may then seek to take the property. This is usually done as a “quick take” where the Circuit Court may grant an Order of Taking, requiring the condemning authority to deposit its good faith estimate of value. Upon deposit of this good faith estimate of value, the title to the property transfers. The property owner may then withdraw the deposit and continue to seek additional compensation by a negotiated settlement or a trial by a 12-person jury.
Who pays for the attorneys and the experts?
Condemning authorities who seek to acquire property in furtherance of a public project are required to pay all reasonable and necessary attorneys’ fees, expert fees, and costs. Generally, the expert fees and costs are paid regardless of the outcome, while attorneys’ fees are benefit-based. In certain circumstances, expert fees and costs may not be paid for by the condemning authority. Federal agencies generally are not required to pay fees and costs.
What can Birchfield & Humphrey, P.A. do for you?
Birchfield & Humphrey, P.A. is prepared to handle each stage of the process in eminent domain, property rights, and land use matters, whether it is pre-condemnation planning, order of taking hearings, mediation, trial, or appellate representation. I can help you assemble the various eminent domain experts, negotiate with the opposition, or present your case in the circuit or appellate courts. I welcome the opportunity to work with other lawyers on a co-counsel basis to jointly represent you in your eminent domain matters. Contact me to learn more about how I can help you.