About Eminent Domain
1. Eminent Domain is defined as when a governmental entity or utility seeks to acquire a portion or all of one’s property or business for a public purpose, such as the construction of a public highway, gas pipeline, park, school, drainage project, etc. The acquisition can be a voluntary agreement or through litigation by the condemning authority filing a legal petition in the county where the property is located.
2. How Soon Should I Get an Attorney Involved? Immediately.
An attorney is necessary to assemble your claim, analyze the government’s construction plans, and if desirable draft a binding settlement agreement that protects you in the future. It is particularly important that any leases be reviewed, as a lease term can limit the Business Damages that a business owner can claim. At the same time, the terms of, or lack of, a condemnation clause in a lease can entitle a tenant to a portion of the landlord’s claim for the property taken. In some cases, lease amendments can be negotiated before the initial offer is received from the government.
3. Who Pays My Attorney Fees & Appraisal Costs? Under Florida Law, a project’s condemning authority is required to pay the landowner or business owner’s:
Fees for appraisers, accountants, engineers, and other experts; and
Costs for exhibits, videos, deposition testimony, court reporting, etc.
The purpose for requiring the government to pay one’s attorney and expert fees is to ensure that the individual has resources equal to the condemning authority in an eminent domain action.
All pre-condemnation consultations with the Callan Law Firm are free of charge.
4. When Do I Need an Attorney?: Once a condemning authority announces the proposed future project, every landowner, business owner and tenant should consult with an attorney to discuss the circumstances and review any pre-condemning planning issues.
Pre-condemning planning issues include but are not limited to:
- Whether or not to proceed with land development approvals;
- Whether to extend or modify a lease;
- Whether to memorialize a lease;
- Whether to exercise an option for a lease;
- Whether to review the terms of a lease as to the area subject to the lease; and
- Whether the taking could trigger a due on sale or similar clauses within the mortgage document.
Many times, talking and negotiations will extend for two to four years after the announcement of a proposed taking. During that interim period, if leases are available for renegotiation or mortgage financing may come due, the landowner, tenant, or business owner should consult with an experienced eminent domain attorney. Since actions taken during this time period could limit one’s rights to future compensation, an attorney should be consulted to avoid the loss of one’s rights.
Proper pre-condemnation planning can avoid apportionment claims or disputes between landlord and tenant, owner and mortgage company, and owner and easement holder. In short, an attorney is necessary once a project is announced as an attorney is needed to evaluate the property to be acquired, the proposed project, and to provide advice to the land owner with regard to what steps should be taken during the time between the announcement and an initial offer.
5. What Compensation Am I Entitled To As a Landowner? Under Florida Law, land owners are entitled to receive Full Compensation for the property taken.
Full Compensation includes, but is not limited to, the fair market value of the real estate and any improvements being taken, reduced value of the remaining property, severance damages, and in some cases, moving costs. The goal of Full Compensation is to ensure that the owner is restored to an equal position financially as he or she would have been if the property had not been taken.
Full Compensation is not limited to Fair Market Value of the property. Fair Market Value is the price that a seller willing, but not compelled, to sell and a buyer willing, but not compelled, to buy would agree on in fair negotiations with knowledge of all the facts. All factors that might be considered and reasonably given substantial weight in the bargaining between the seller and the buyer are considered.
The property should be valued according to its Highest and Best Use. The phrase “Highest and Best Use” means the highest and most profitable use for which the property is reasonably adaptable and needed, or is likely to be needed, in the foreseeable future. The Market Value of other comparable property and all other factors tending to increase or reduce the value of the property are also considered.
Although Fair Market Value is a reliable standard in determining the amount of Full Compensation to be paid to the owner, it is not the only standard. Fair Market Value is merely a tool used to assist in determining what value of Full Compensation is guaranteed by the Florida Constitution. All facts and circumstances that bear a reasonable relationship to the owner’s loss must be taken into account.
6. What Compensation Am I Entitled to As a Business Owner? Under Florida Law, Business owners may be entitled to Business Damages in a partial taking where a business is located on the part taken and the remaining property and the taking is for right-of-way. Business Damages include, but are not limited to, the reduced profitability of a business as a result of a taking. A Business Damage claim must be prepared and presented to the condemning authority within 180 days of the letter to business owner under sec 73.015, F.S.
To present a business damage claim, one must first quantify how the loss of property will reduce the value of the business. The Callan Law Firm has extensive experience with market consultants, traffic engineers, and other experts whom we employ to quantify the reduced value or the profit-making-capacity of the business caused by a taking.
7. What Are My Rights? Landowners and Business owners have the right to:
- Challenge a project or its design;
- Examine the condemning authority’s appraisal;
- Prove damages greater than those suggested by the condemning authority;
- Have their property valued at its most profitable use, which may include a reasonable probability of rezoning;
- Make a counteroffer or refuse to sell;
- Request changes to the construction plans of a project to benefit their remaining property; and
- Demand a jury trial.
8. What Will the Callan Law Firm Do For Me? Our law firm will obtain the necessary information and employ the appropriate experts to:
- Ensure you are compensated for all claims;
- Make your claim for Full Compensation and/or Business Damages;
- Determine the most profitable use of your property;
- Analyze all construction plans prepared by the condemning authority;
- Assess the impact that the project will have on your remaining property;
- Draft a settlement agreement or final judgment that protects your interests in the future; and
- Litigate your claim, if necessary.