Eminent Domain is the power of a condemning authority to take private property for a public purpose.
The Fifth Amendment of the U.S. Constitution provides that no private property shall be taken for public use without just compensation. Additionally, 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.
Condemnation is the exercise of the power of eminent domain by a condemning authority. 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.
Condemning authorities exercise their power of eminent domain and condemnation in Florida to acquire right-of-way that is necessary for public projects or purposes with the responsibility of also making the property owner whole. Making the property owner whole can include compensation for the part taken, damages to the remaining property, costs-to-cure, qualified business damages, and other compensation reasonably necessary to make the owner whole.
Importantly, 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. In most cases, the property or business owner does not shoulder the burden of paying for his or her legal counsel or expert assistance.
Before the condemnation process begins, the condemning authority, analyzes the proposed public project. Once the project is defined, the condemning authority identifies the necessary property to be acquired.
Next the condemning authority hires its own engineers, land planners, appraisers, and other experts to evaluate the property to be acquired and 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 and requires a cure or monetary compensation. 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. There is a time limit within which to make a claim for business damages, thus hiring our firm as soon as you are aware of a potential condemnation action is very important.
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 from the private property owner to the condemning authority. The property owner may then withdraw the deposit and continue to seek additional compensation through a negotiated settlement or a trial by a 12-person jury.
In most cases, 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, in addition to the full compensation for the property taken. 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.
The attorneys at Birchfield & Humphrey are 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. We can help you assemble experienced eminent domain experts, negotiate with the opposition, or present your case in the circuit or appellate courts. We also welcome the opportunity to work with other lawyers on a co-counsel basis to jointly represent you in your eminent domain matters. Contact us today to learn more about how we can help you.