Questions And Answers About Condemnation/Eminent Domain
What is Condemnation?
Condemnation/Eminent Domain, is when the State or municipality (County or City) takes your property for a for a public purpose. The property owner must be compensated for this taking. Compensation means money!
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
How long will this take?
It depends on the complexity of the case, the court docket, the possibility of settlement, etc.
