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Fall 2014
IN THIS ISSUE
d&G Lawyer News
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Q & A – EMINENT DOMAIN
Q. What is Eminent Domain?
A. Eminent domain is the power of the government to take or to authorize the taking of private property for a public use without the owner's consent. The Florida Constitution forbids the taking of private property for public use without full compensation. An entity exercising the power of eminent domain is called the condemning authority..
Q. Who has the power of eminent domain?
A. The federal government, state government, counties and cities primarily hold the power of eminent domain. The legislature has also delegated the power of eminent domain to various public corporations and boards. Private entities cannot exercise the power of eminent domain..
Q. How is the power of eminent domain exercised?
A. A condemning authority can exercise the power of eminent domain directly or indirectly. In a direct condemnation, the condemning authority seeks to acquire private property by filing a lawsuit against a property or business owner. The property or business owner is the defendant in this type of lawsuit, called an “eminent domain action.”
In an “inverse condemnation action,” an owner sues a condemning authority to recover the value of private property that has been effectively taken by the condemning authority. It is a remedy available to an owner whose property rights have been taken for public use without consent and without full compensation.
Q. What notification should I receive from a condemning authority before an eminent domain action is filed?
A. A condemning authority is required by Florida Law to send property owners a written notice by USPS certified mail before filing an eminent domain lawsuit.
Q. What is the general process of an eminent domain action?
A. Before a condemning authority can bring an eminent domain action, it must attempt to negotiate in good faith with the property owner for the property it seeks to acquire. This offer must include a written offer, and include, if requested, a copy of the appraisal upon which the offer is based.
Q. What am I entitled to receive when the government takes all or part of my property?
A. The owners of a property taken by a condemning authority must receive full and fair compensation.
Q. What is “full compensation?”
A. Full compensation is the amount that would place the owner in the same financial position as if there had been no eminent domain proceeding and the owner had retained ownership of the property. Full and fair compensation includes payment for land and improvements taken, any costs to cure, or severance damage to the remaining property.
Q. Am I entitled to recover attorney’s fees in an eminent domain action?
A. Yes. An owner’s constitutional right to full compensation for property taken by the government includes the right to a reasonable fee for the owner’s legal counsel. Thus, the condemning authority must pay attorney’s fees, as determined by statute, incurred in the defense of eminent domain proceedings. Attorney’s fees are paid in addition to the value of the property taken and do not reduce an owner’s recovery for the property taken.
Q. Am I entitled to recover other costs spent in an eminent domain action?
A. Yes. An owner’s constitutional right to full compensation for property taken by the government includes the right to recover reasonable costs incurred in the defense of eminent domain proceedings, such as costs for the services of appraisers, engineers, and other expenses incurred on the owner’s behalf.
Q. Am I entitled to business damages?
A. Possibly. Business damages are compensable provided the following requirements are met: (1) the business has been established at the place of the taking for at least five years; (2) the property is subject to only a partial and not a whole taking of property; (3) the business must utilize the part of the property to be acquired in the conduct of its business; and (4) the business complies with other procedural requirements.
If you have further questions regarding an Eminent Domain issue, please contact
Vivian Arenas-Battles or
Kristin Morris in our office at varenas@dgfirm.com or kmorris@dgfirm.com.
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