PROPERTY RIGHTS OVERVIEW & COMMON QUESTIONS
This may be the first time your property has been condemned. If so, this information will give you a basic understanding of what is involved in the condemnation process. As you read this information, the following important matters should be kept in mind:
The questions and answers are, by necessity, general and not intended to apply specifically to your case. The facts of every case vary. Please utilize this information as a general overview and not a precise opinion on any particular issue in your case.
This information should not serve as a substitute for consultation with an experienced attorney. If you have any questions about the condemnation process or the particularities of your case, please feel free to call us and either discuss your concerns over the telephone or to schedule a conference, either at our property or in our office. Our best clients are our best informed clients, and this summary is intended to serve as only one of several means of providing you the information you need to understand your case and make well-informed decisions.
The statements herein reflect the law as of June 2014. Because the laws change, some of this information may no longer be correct as of today. The laws affecting owners’ rights in condemnation cases are established by our constitution and the legislature. Should the legislature pass a statute or a court make a ruling which changes a law discussed herein, that portion of this information may become obsolete.
This summary is intended to describe the condemnation process in state courts in Florida. Condemnation laws in different states and condemnation laws in federal courts in Florida may differ substantially in certain respects from the overview contained herein.
We hope that you will find this information helpful. Should you have specific questions regarding you individual situation, call us. We will gladly discuss your case with you free of charge.
FREQUENTLY ASKED QUESTIONS
What is condemnation? Condemnation is the power to take private property for a public purpose. The power of condemnation is also known as the power of eminent domain.
What are my rights? The United States and Florida Constitutions protect private property rights. You can contest the taking of your property, but if a judge rules that your property may be taken, your constitutional right is to receive full compensation for your property. Full compensation is a practical attempt to make the property owner whole. This means that you are entitled to be put in the same financial position after the taking of your property that you were in before your property was taken.
Who pays for the protection of my rights? Florida has a long tradition of upholding the right to own private property. You have the right to hire an attorney and other experts, such as real estate appraisers, accountants or engineers who specialize in eminent domain cases to evaluate and, if necessary, contest and litigate the condemning authorities estimate and offer of full compensation. The Florida Constitution requires that the government or condemning authority pay reasonable attorneys’ fees and costs, including expert witness fees, associated with the taking of private property. The intent of this requirement that the government pay for the owner’s attorneys’ fees and costs is to put the property owner on an equal footing with the government.
How are the attorneys’ fees and costs determined? Once you have received your compensation for the taking, the award of attorneys’ fees and costs is determined by the court. The award of attorneys’ fees is primarily based on the benefits over and above the original government offer that the attorneys are able to obtain on behalf of the client.
Who can take my property? Federal, state and local governments have the power to condemn private property. This power has been delegated to many governmental agencies such as the Florida Department of Transportation. The government has also delegated the power of eminent domain to public utilities and in certain, very limited situations, to private companies and individuals.
Can the government take as much of my property as it wants? No. The government can only take as much of your property as the court finds is reasonably necessary to accomplish a public purpose.
Who decides whether the condemnation of my property is for a public purpose or private purpose? Only a judge can decide. Even if the condemning authority believes the condemnation is for a public purpose, a judge can rule otherwise and deny the government the right to take your property.
Should I be doing anything before my property is taken? There are several actions an owner may take before his property is taken. Because the owner’s actions may help or hurt his case, it is wise for an owner to seek the advice of an attorney when considering pre-condemnation actions.
The owner should avoid taking positions, especially written positions, which may be used against him in the condemnation proceeding. If the owner contests his tax assessment, for example, that may be used against him in the condemnation case if the owner asserts a higher value.
Do not discuss any issue pertaining to the value of your property with anyone without first consulting an attorney. Unlike other areas of civil law, in eminent domain the government is your opponent - not your protector. What you say may be used against you at a later date.
The owner should maintain the appearance and condition of the property. Visual impressions, even to sophisticated professionals, are important, and appraisers and other experts will be inspecting the property before it is condemned. It is in the owner’s best interest to have the property looking as good as possible.
Contamination on the property may reduce the final award, delay the payment of funds to the owner or result in the owner’s liability for cleanup charges. An owner should consult with an attorney and take whatever steps necessary to assure that the property remains free of contamination.
The value of the property is often enhanced by favorable land use permits. The securing of a rezoning, plat approval or building permit may result in a higher valuation of the property. The decision of whether to apply for such permits must always be weighed against the effect which a potential denial will have on the case. It is thus wise to seek the advice of an attorney before proceeding with a land use application.
As leases and mortgages are negotiated, provisions known as “condemnation clauses” may be included. A condemnation clause spells out the specific rights of all parties to the agreement in the event a portion or all of the property is condemned. Because the condemnation clauses may affect the division of the final award, the owner’s attorney should be consulted on the condemnation clauses contained in these documents.
Do not supply copies of leases, expense records, profit and loss statements or similar documents to the government or its representatives until you have referred such requests to your attorney.
When will I be required to give up my property? The date for surrender of possession depends upon whether the acquisition is accomplished by a sale of the property in lieu of condemnation, or by a court Order of Taking. In no event will an owner be required to surrender possession of his property until either he agrees to a certain date, or the judge sets a date.
What will happen if I do not accept the government’s offer? The government will file a lawsuit to condemn the portion of your property needed to construct its public project. You are entitled to a hearing on the government’s right to take your property. If the court grants the government the right to take your property, then an Order of Taking will be entered. The government will then deposit its offer or “good faith estimate of value” into the court registry.
If the court enters an Order of Taking, how do I get my money? Your attorney will file a motion and schedule a hearing. The motion will ask the court for permission to withdraw the money and disburse it to the owner. The motion and notice of hearing will be sent to all parties who have an interest in your property (mortgagees, tenants, lien holders, etc.).
At the hearing, anyone who has an interest in the property may make a claim to the funds deposited by the condemning authority. Prorated real estate taxes and special assessments are also deducted and paid to the appropriate officials before the owner’s balance is determined and disbursed.
If it is not possible to make a precise apportionment of the Order of Taking deposit, the funds will be placed into a joint interest-bearing account. These funds will be disbursed to the parties at the conclusion of the case, after the court enters a final order of apportionment or the parties are able to reach a settlement agreement.
If I withdraw the money which the government deposits in the court registry, will I be able to ask for more at the trial? Yes. Your withdrawal of the Order of Taking funds is without prejudice to your final claim. This means that neither the amount of the government’s deposit nor the fact that you use it during the case can be used against you in the trial. Once you withdraw the funds, however, there is nothing to prevent the government from presenting testimony at trial that is lower than the deposit.
If I don’t agree with the government’s offer, who decides how much money I get? A jury. State law provides that a jury of twelve persons determines the amount of compensation to be paid to an owner who loses his property through condemnation. You are entitled to be paid for the value of your property taken, damages to your remaining property caused by the taking and under certain circumstances, damages to your business caused by the taking.
Is a tenant also considered an “owner” of property? Yes. Under Florida law, a tenant is also considered an owner of property and is entitled to the same constitutional protections as the fee simple owner.
The taking of my property will hurt my business. Under what circumstances am I entitled to compensation for damage to my business? Florida has a business damage statute which allows an owner of a business to recover compensation for business damages if part of his property is condemned.
In order to qualify under this statute, however, the business owner must meet four tests.
1. The condemnation must be undertaken by a public body, rather than a public utility. For example, an owner whose property is condemned by a county would qualify, while another owner whose property is condemned by Florida Power may not.
2. The condemnation must be for a right-of-way. An owner whose property is condemned for the construction of a road, for example, may qualify, but an owner whose property is condemned for a school may not.
3. The taking must be a "partial taking," that is, a taking of only a portion of the property, and the business affected must be located on both the property and on the remaining property.
4. The business must be established at the specific location that is being condemned for at least 4 years prior to the taking.
If a business owner does not meet each of these requirements, it is probable that he will not be able to recover compensation for business damages, even if the taking damages his business operation.
Do I pay taxes on my award? Because a condemnation is considered an involuntary conversion, it is treated differently from voluntary sales. You will have a period of time to reinvest the condemnation proceeds and defer your tax obligation until a later date