Frequently Asked Questions About Eminent Domain
Eminent domain is a misunderstood area of law that creates questions for homeowners, private landowners and business owners. At Callan Law Firm, our attorneys provide personalized attention to answer every question you have throughout the legal process.
Below are some of the most common questions people in Florida have about eminent domain.
What Is Eminent Domain?
Eminent domain occurs when a governmental entity or utility seeks to acquire private property or business for a public purpose. These purposes may include the construction of a public highway, gas pipeline, park, school or drainage project. The acquisition can be a voluntary agreement or through litigation by the condemning authority.
How Soon Should I Get An Attorney Involved For Eminent Domain Matters?
It is critical to contact an attorney immediately after receiving notice of eminent domain. An attorney is necessary to assemble your claim, analyze the government’s construction plans and draft a binding settlement agreement that protects you in the future.
It is particularly important to review any leases. A lease term can limit the business damages that a business owner can claim. At the same time, 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.
Who Pays My Attorney Fees And Appraisal Costs?
Under Florida law, a project’s condemning authority is required to pay the landowner or business owner’s:
- Attorney fees
- Fees for appraisers, accountants, engineers and other experts
- Costs for exhibits, videos, deposition testimony and court reporting
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. At Callan Law Firm, we offer free precondemnation consultations.
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. A qualified lawyer can discuss the circumstances and review any precondemning planning issues.
Precondemning planning issues include, but are not limited to:
- Whether 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
- 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. Since actions taken during this period could limit one’s rights to future compensation, an attorney should be consulted to avoid the loss of one’s rights.
Proper precondemnation planning can avoid apportionment claims or disputes between landlord and tenant, owner and mortgage company, and owner and easement holder. Once a project is announced, an attorney is needed to evaluate the property to be acquired, the proposed project and to provide advice throughout the process.
What Compensation Am I Entitled To As A Landowner?
Under Florida law, landowners are entitled to receive full compensation for the property taken. Full compensation includes, but is not limited to:
- Fair market value of the real estate
- Any improvements being taken
- Reduced value of the remaining property
- Severance damages
- 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.
When valuing the property, it should be valued according to its highest and best use. This 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 the value of full compensation that is guaranteed by the Florida Constitution.
What Compensation Am I Entitled To As A Business Owner?
Under Florida law, business owners may be entitled to damages that include, but are not limited to, the reduced profitability of a business resulting from the taking. A business damage claim must be prepared and presented to the condemning authority within 180 days of the letter to business owner.
To present a business damage claim, one must first quantify how the loss of property will reduce the value of the business. We have 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.
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
- Demand a jury trial
What Will Callan Law Firm Do For Me?
Our law firm will obtain the necessary information and employ the appropriate experts to:
- Work to ensure you receive full compensation for your claim
- 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
- Litigate your claim, if necessary