Taking of Property by Government Entities
Whether referred to as Eminent Domain, Condemnation or Government Taking, they all involve the same result – the government taking your property against your will. Although the government has the right to take your property, they can only do so to satisfy a public purpose and they must pay you fair compensation for taking it. In most circumstances, the government entity that is taking the property is also responsible for paying your attorney fees.
At Troiano & Roberts, P.A. we understand the connection people have with their homes and property. If you become aware that your property may be taken, in whole or in part, we can help you understand your legal rights and assist you in obtaining the true value of your property. Let us fight for you and your property!
Both the State and Federal Constitutions impose two requirements on the exercise of this Power:
(1) that no person shall be deprived of property without due process of law; and
(2) that no private property shall be taken except for a public purpose, with full compensation paid to the owner or secured by deposit in the court registry and available to the owner. F.S.A. Const. Art. 10 s 6.
Political subdivisions and agencies of the government have no inherent constitutional power. They may be delegated this power only by legislative act, and they are strictly limited to any conditions within the grant of power, in addition to both the State and Federal constitutional limitations. In other words, they can take it; but they’ve got to do it by the book! Florida lawmakers have been very careful to protect the rights of landowners in this type of action, and have created an intricate set of rules and procedures for these entities to follow.
Property owners often accept whatever governmental entities say or offer as just compensation for their property without any legal challenge, and usually without any independent evaluation of the fairness of the compensation offered. In many instances, the offer of just compensation does not include all of the compensable elements of value that a landowner may be entitled to receive. Also, the question of whether a condemning authority may be attempting to take the property in an improper manner, or whether they are taking it for an unauthorized purpose, is almost never addressed by the entity making the offer. To counter this potential unfairness, the laws protect landowners by attempting to put them on an equal footing with the condemning authorities who must pay reasonable expert witness fees, costs, and attorney’s fees for the landowner’s defense.
Normally, governmental entities seeking to acquire property will attempt to notify the property owners of their intent to take the property before any court proceedings are initiated. During this period, the condemning authorities should attempt, in good faith, to negotiate a settlement with the property owners. Appraisers, engineers, etc., will have determined the estimated fair market value of the property for the condemning authorities. It is at this point that the landowner should seek the advice of counsel and independent experts. It is often possible to settle the case, or to have the project redesigned in a way to mitigate the client’s damages. If the initial negotiations fail, the good faith estimate of value will be the value relied upon by governmental entities when the initial pleadings (Petition in Eminent Domain, Declaration of Taking, Estimate of Value, Notice of Lis Pendens, and Summons to Show Cause) are actually served on the landowner. This value is subject to amendment up until the actual Order of Taking is entered.
It should also be mentioned that in certain situations the governmental entities, through the imposition of excessive land use regulations or actions, such as the opening of a dam which raises the water level of a body of water and floods property, may keep a property owner from using his or her property for the purposes which he or she had intended. This is called inverse condemnation. In these situations, a taking of the property has occurred without the required legal procedures, and sometimes without the knowledge of governmental entities. The rights of the property owner are still the same. They are entitled to just compensation for the land taken even if it is only a temporary situation.
At the hearing on the Order of Taking, the court must determine whether there exists a public necessity for the taking of land in question and whether there is a good faith estimate of value based on a valid appraisal. If both conditions are met, title to the land in question is transferred to the condemning agency upon its deposit of the specified sums of the good faith estimate of value into the Registry of the Court. The landowner may withdraw these sums as soon as any liens or encumbrances have been cleared. The withdrawal of these sums is without prejudice as to any rights the landowner has with respect to the total property and the amount of compensation sought. Thereafter, if no agreement can be reached between the landowner and the governmental entity, it will become the duty of a twelve-member jury to determine the landowner’s just compensation.
COMMONLY ASKED QUESTIONS AND ANSWERS ABOUT CONDEMNATION
1 . What is Condemnation?
Condemnation is the process of Eminent Domain, whereby the power of the State or one of its subdivisions (County or City) to take private land for a public purpose is exercised. The property owner must be compensated for this taking. Compensation means money!
2 . Do I have to own my property to be entitled to compensation?
No. Under the law, even tenants are owners for the purposes of condemnation statutes. Your status as tenant or mortgagee does not necessarily preclude you from compensation for the taking; however, the specific terms of your lease or mortgage could.
3 . How are Condemnation proceedings pursued?
If the State decides to exercise its power of Eminent Domain to take your land, or a portion of your land, you will be served with a Petition (lawsuit) pursuant to Chapter 73 of the Florida Statutes. The Petition will set out a legal description of the property to be taken and list the owners of the property. The Petition must also conform with certain legal requirements as provided for in Chapter 73, including that the property taken is necessary for a public purpose. You, the land owner, are entitled to answer this Petition as you would any other lawsuit.
4 . Can I prevent the proposed taking?
You may be able to prevent the proposed taking by filing your Answer and objecting to the necessity of the taking. Once you object to the taking in your Answer, the State is required to meet its burden to show that the property is reasonably necessary for the public use for which it is intended. Generally speaking, if the State, or one of its subdivisions, is taking the property for a public purpose and is authorized to condemn private property for that purpose, it is unlikely that the property owner will prevail in preventing the taking.
5 . What happens once my property is taken?
“The Florida Constitution provides that the owners of property taken are entitled to full compensation. No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the Registry of the Court and available to the owner.” Fla. Constitution Article I, Section 9.
Full compensation includes the fair market value of the property being taken, plus whatever damages result to the owners remaining land because of the taking. The owner is entitled to be put in as good a position financially as he or she would have been if the property had not been taken.
6. What is fair market value?
“Fair market value is the price a seller (willing, but not compelled to sell) and a buyer (willing, but not compelled to buy) would agree upon in fair negotiations with knowledge of all the facts. In making that determination, you should take into account all factors that might fairly be considered and reasonably be given substantial weight while bargaining. The property should be valued in accordance with its highest and most profitable use for which the property is reasonably adaptable and needed, or is likely to be needed, in the near or foreseeable future”.
You also may consider the market value of other comparable property, as well as all other factors tending to increase or reduce the value of the property that would be considered by a prudent seller and buyer in negotiating a voluntary sale and purchase of the property taken.
7. Do I have to accept the condemning authority’s offer of full compensation?
No. You do not have to accept the estimated full compensation (or “good faith estimate”) made by the condemning authority. The “good faith estimate”, attached to the Petition by the condemning authority, is required by law pursuant to Chapter 74 “Quick Take Proceedings”. Pursuant to Chapter 74 “Quick Take Proceedings” the condemning authority receives title to your land before actually paying you full compensation so that construction of the public project may proceed immediately.
8. If I do not accept their Offer, do I forfeit my rights?
No. You are entitled to a trial in which twelve (12) jurors will determine the amount of full compensation for your property and business damages, if any.
9 . How soon can I get my money?
As soon as the condemning authority deposits its good faith estimate of value for your real property, you may be entitled to withdraw all or a portion of that estimate of value. Estimated business damages, if any, do not have to be deposited before the Final Judgment is entered. After the verdict and Final Judgment is entered, the condemning authority is required to deposit, within thirty (30) days, all compensation and damages finally awarded to you.
10. Do I need an attorney or an appraiser?
This decision is up to the landowner. The condemning authority will have an attorney and appraiser working for them. There are certain elements of damages you will not be entitled to unless you specifically request them in your Answer to the Petition. Whether you feel comfortable in objecting to the taking or negotiating and possibly litigating full compensation with the professionals hired by the condemning authority is a personal decision. However, it is often beneficial to at least consult with an attorney and/or appraiser familiar with the condemnation process.
11.Who pays my attorney’s fees to defend the condemnation suit?
The law provides that:
“Except as provided in Section 73.092(7), the petitioner (condemning authority) shall pay all reasonable costs of the proceedings in the circuit court, including, but not limited to, reasonable attorney’s fees, reasonable appraisal fees, and, when business damages are compensable, a reasonable accountant’s fee, to be assessed by that court.” Florida Statutes Section 73.091.
12. Do I have to be present in court?
You will not be required to appear in court. However, as a property owner, you are entitled to testify as to the value of your land.
13.How long will this take?
It depends on the complexity of the case, the court docket, the possibility of settlement, etc.