The Florida Eminent Domain Process
This information is general in nature concerning the eminent domain or condemnation process under Florida Law, and is not intended to be a rendering of legal advice. Property owners are advised to engage an attorney and obtain legal advice for all issues regarding their particular condemnation cases.
The Five Basic Steps of a Florida Condemnation
If the condemning authority (which can be a governmental entity or utility company) decides that they need to acquire your property by eminent domain, you will face some or possibly all of the following five step process.
Step 1: Appraisal of Your Property. The condemning authority will appraise your property by sending an appraiser, and possibly other experts (engineer or land planner) to your property. Prior to the appraisal step, you will have received a notice to the owner that the government intends to acquire your property, either in whole (a whole taking) or in part (a partial taking). The appraiser working for the condemning authority will value the land that is to be taken from you, improvements on the part taken, and also analyze severance damages to the remaining land, if it is a partial taking.
Step 2: The Condemning Authority Provides a Written Offer to You. The government or utility company will provide you with a written offer to acquire your property. The offer will be based on the appraised value opinion rendered by the government or utility companies appraiser. Often, the providing of the offer will occur at an in-person meeting with the condemning authorities’ representative and you will be provided with a copy of the appraisal report, right-of-way maps and construction plans (if you request them) at the offer meeting.
Step 3: The Eminent Domain Lawsuit and the Order of Taking Hearing. Should you reject the written offer, which you have every right to do, the government or utility company will then file an eminent domain lawsuit to acquire your property by force of law. After the lawsuit is filed, if the condemning authority decides to acquire your property by “quick taking,” whereby title and possession are acquired prior to entry of a final judgment, then an “order of taking” hearing shall take place before a circuit judge in the county in Florida where your property is located. At the “order of taking” hearing the judge will decide whether or not the government or utility company have the legal authority to acquire your property by eminent domain authority. Should the court rule that the government or utility company has the authority to acquire your property by eminent domain, the judge will enter an “order to taking,” which is a court judgment authorizing the taking of your property by eminent domain. The government or utility company will need to deposit their estimate of value for the taking into the court registry to effectuate the taking of your property. Once the money is placed into the registry of the court, the government or utility company will then own title to the property taken from you.
Step 4: Mediation. The vast majority of eminent domain cases in Florida will be resolved at a court-required mediation. An objective and unbiased mediator will attempt to facilitate a negotiated settlement between the property owner and the condemning authority. This is a confidential process whereby the mediator attempts to have both sides weigh the strengths and weaknesses of their respective cases, and then tries to assist both sides to reach a settlement agreement.
Step 5: Trial by Jury. If the case does not settle at mediation, the property owners have the right to trial by jury. The jury then becomes the decision maker on the amount of full compensation that an owner is entitled to under the Florida Constitution and Florida Statutes. Jury trials are not very common in eminent domain in Florida, as most cases will settle at mediation. However, it is comforting to some owners that they never have to accept the condemning authorities’ offers, and ultimately they can bring their case to a twelve-person jury of their peers to decide how much full compensation they are entitled to for the taking of their property.
Who Decides Whether the Government or Utility Company Can Take My Property by Eminent Domain?
The court or judge decides whether private property can be taken by eminent domain in Florida, not a jury. Sometimes owners are of the mistaken opinion that a jury will make the decision on whether the government can take their private property. The jury in Florida, depending on whether trial by jury is requested, makes the decision on the amount of compensation that is owed to the property owner for the taking.
Who Will Pay My Attorneys’ Fees and Experts’ Fees?
Florida law requires that your attorneys’ fees be paid by the condemning authority, based on the benefit that your attorney obtains for you above the condemning authority’s written offer. Florida law also requires that the condemning authority also pay all reasonable experts’ fees. There are exceptions where the condemning authority does not have to pay experts’ fees, for example, if an offer of judgment is triggered against the owner. The offer of judgment is one of many topics in eminent domain that you should seek legal advice from an attorney on.
Will I Have to Leave My Property the Moment it is “Taken?”
In a quick taking (see the difference between a “quick taking” and a “slow taking” below), the condemning authority will acquire title and possession prior to entry of final judgment. Title to your property will transfer upon placement of the condemning authorities’ estimate of value into the court registry, within 20 days of the order of taking hearing. Possession is another matter, whereby the condemning authority will sometimes permit you to stay on your property for an extended period of time beyond the date of the transfer of title (this is called an extended possession period). If the condemning authority is not willing to provide extended possession on your property, the judge has the discretion under Florida law to grant extended possession at the order of taking hearing.
What is the Difference Between a Quick Taking and a Slow Taking?
The “quick taking” is the form of taking most commonly used in Florida to acquire property for roads and other infrastructure, as it allows the condemning authority to acquire title and possession prior to entry of final judgment. In a “slow taking,” the condemning authority does not acquire title or possession prior to final judgment, but instead, if no settlement is reached, the condemning authority decides after a jury verdict whether or not they want to pay the verdict compensation, and only if they deposit the verdict amount is the property taken, and title and possession transfer. If they decide they do not want to pay the verdict amount, and therefore do not deposit the funds in the requisite time, the taking does not occur and the judgment is void.