The Process

The eminent domain process can be complicated and should not be navigated alone.  As a property owner, you may not know your rights when you have been notified your property will be taken by the government.  Below are answers to common questions related to the eminent domain and condemnation process.  Every situation is unique; therefore, the information provided below should not be construed as legal advice.

WHAT IS EMINENT DOMAIN?

Eminent domain is the power of the government to take private property. Due to the fact that 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 THE GENERAL PROCESS OF AN EMINENT DOMAIN ACTION?

In Florida, a condemning authority may file one of two types of lawsuits. These lawsuits are known as “eminent domain actions” and divide into a Quick-Take Action and a Slow-Take Action.

How is the Power of Eminent Domain Exercised?

Direct eminent domain is exercises when the condemning authority files a lawsuit against a property or business owner before taking the property. This type of lawsuit is called an “eminent domain action”. The property or business owner is made a defendant to the lawsuit.

Indirect eminent domain is exercised when the condemning authority takes property before filing a lawsuit. This type of taking can occur through a physical use or invasion, or through the application of a regulation. 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 a “Quick-Take” Eminent Domain Action?

A quick-take action is used more frequently. 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 lawsuit and sets a hearing known as an “order of taking” hearing. At the order of taking hearing, the condemning authority must prove three things: The property is necessary, it is for a public purpose, and a good faith estimate of valued based on a valid appraisal report has been prepared.

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 the property or business owner will receive.

What is a “Slow-Take” Eminent Domain Action?

A slow-take action is rarely used. It may involve the taking of private property necessary for parks or environmental preservation. In a slow-take action, the condemning authority files a lawsuit 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 lawsuit.

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. In a slow-take, this is the date of trial. It is dependent on whichever occurs first.

Am I Entitled to a Copy of the Condemning Authority’s Appraisal Report?

Upon request, the law requires that you can be provided a copy of the appraisal report.

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 20 days of the entry, the condemning authority must deposit its good faith estimate of value into the court registry. Upon the deposit, the condemning authority becomes owner of the private property and is entitled to possession. However, if appropriate, the owner can negotiate or petition to hold title to the property or possession of the property for a longer time. 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 allowing a jury trial. If the judge orders mediation, you – along with representatives from the condemning authority and a mediator – need to attend.

A mediator does not hold biases. 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?

Though an eminent domain jury trial typically lasts at least three days, they could last up to two weeks in some cases. A 12-person jury is responsible for deciding their conclusion 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.

DO I HAVE TO ACCEPT THE CONDEMNING AUTHORITY’S OFFER?

You do not have to accept the condemning authority’s offer. You are entitled to obtain your own valuation prepared by a professional.

AM I ENTITLED TO RECOVER ATTORNEY’S FEES IN AN EMINENT DOMAIN ACTION?

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 compensation and do not reduce your recovery for the property taken.

AM I ENTITLED TO RECOVER COSTS SPENT IN AN EMINENT DOMAIN ACTION?

The condemning authority is required to pay your reasonable costs in an eminent domain action. Costs include invoices for professional services, such as appraisers and engineers, and other expenses incurred on your behalf. Costs are paid separately from any compensation 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 or private gas companies. Private entities do not have the power of eminent domain.

WHAT LEGAL NOTICES SHOULD I RECEIVE BEFORE AN EMINENT DOMAIN ACTION?

Before filing an eminent domain lawsuit, Florida law demands that all condemning authorities send business and property owners a written notice by USPS certified mail.

WHAT COMPENSATION IS A TENANT 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, it is usually paid from the amount recovered by the owner.

CAN AN OWNER CHALLENGE THE TAKING OF PRIVATE PROPERTY BY EMINENT DOMAIN?

An owner can challenge by the power of eminent domain. If the challenge is successful, the judge may dismiss the eminent domain lawsuit.

WHAT IS “FULL COMPENSATION”?

The Florida Constitution guarantees that private property shall not be taken, unless for a public purpose that will award full compensation to each owner. “Full compensation”, within meaning of Florida’s constitutional provision, seeks to make an owner whole by placing the owner in the same position financially as if there were no condemnation proceeding and the owner had retained ownership.

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