Stratton Eminent Domain Law, PLLC

You may have heard the term “eminent domain,” but have had the good luck not to have encountered it first-hand. Here we have tried to answer some basic questions that you may have about eminent domain. If you believe that eminent domain poses a threat to you, we encourage you to contact us so that we can answer your questions personally and in-depth. It is important that you understand how eminent domain may affect you, what your rights are, what you can do to protect yourself, and how we can help you.

What is “Eminent Domain”?

Eminent domain is the government’s power to take private property for a public purpose against the will of the property owner. Eminent domain is also called “condemnation,” and the entity taking the property is also called a “condemnor” or “condemning authority.”

Who are “Condemnors”?

Generally, all levels of government — federal, state, and local — can take property through eminent domain. Government organizations like expressway authorities, water management districts, and community development districts can also use eminent domain. The federal and state governments have also granted the use of the eminent domain power to certain private companies, such as utility companies and railroads.

In our experience, eminent domain is most often used by the Florida Department of Transportation, counties and municipalities, and major utility companies like Florida Power & Light or Duke Energy.

Why can property be taken?

Condemnors are only allowed to take property when there is a public purpose for doing so. Such purposes include building roads, highways, bridges, schools, parks, airports, and government buildings. The construction of utility infrastructure, like power lines and natural gas pipelines, as well as railroads, are also public purposes. Virtually every piece of public infrastructure in the United States required taking at least some land away from its owner. Since it is unlikely that essential infrastructure could be built without eminent domain, it is best thought of as a necessary evil.

But no matter how important or noble-sounding the condemnor’s project is, it is always important to remember that you have rights too. Condemnors cannot just take whatever they want, whenever they want, and pay as little as they want. They must go through certain legal processes meant to limit the abuse of the eminent domain power.

What can be taken, and how much?

A condemnor can take any kind of property, but is only allowed to take as much as it reasonably needs for the public use at issue. For example, if a local road was being widened and the government needed a strip of privately-owned land, it could not take more than that strip of land.

Although condemnors usually take land and the improvements on the land (like buildings, pavement, and landscaping), they can actually take any kind of private property. For example, the state government has at times taken and destroyed privately-owned citrus trees in order to stop the spread of tree diseases.

Condemnors can also take full ownership of property, or they can take only certain rights in the property, leaving the other rights to the owner. For example, utility companies often do not need to take full ownership of land but can get by with owning only certain rights in the land. An electric power utility might take the right to have power lines cross overhead. A natural gas pipeline utility might only take the right to bury a pipeline underneath the property. Even a government condemnor building drainage improvements might only take the right to drain water through or onto your property instead of simply taking the property outright. When only some property rights are taken, the owner retains the other rights, but is usually limited from using the property in a way that could interfere with the condemnor. For example, if a condemnor has the right to cross your land to reach its utility lines, you are not allowed to keep them out. Depending on how serious these limits are, the effect could be substantially the same as if the property had been taken outright.

The duration of the taking is another factor to be considered. Usually, land is taken permanently for the purpose of building new permanent public infrastructure. Sometimes, however, the government only needs land temporarily. This is typically done to make it easier to build permanent improvements. At the end of the temporary period of time, the land would be returned to its owner.

How can I possibly fight back?

Condemnors can take property but you still have important rights under the law that you can protect yourself with:

You have the right to hire lawyers of your choice. You do not need to fight eminent domain alone. Lawyers who are experienced and knowledgeable about eminent domain law can help you. Eminent domain cases start in front of only a judge, but end in front of a jury. Even if you do not think your case is likely to go to trial, hiring an experienced trial lawyer will be of use if the case is tried, and signals to the condemnor that you are prepared to take your case all the way.

You have the right to insist on full compensation for your property and/or for damage to your business. Property cannot be taken from you through eminent domain unless the condemnor gives you full compensation for the property. Condemnors will offer to pay for the property they take, but often make low or unfair offers, adding insult to injury. Condemnors routinely do this because experience shows that most property owners will not try to protect their rights at all, and will take any amount offered, no matter how low.

Although the condemnor will probably only make an offer to the owner of the property (or one of the owners, if there is more than one), they also have to pay anyone who owns at least some property rights that are taken. This can include tenants and owners of easements (which is the right to use someone else’s property, such as for a shared driveway).

Depending on the circumstances, the condemnor may also have to pay for the damage or destruction of a business operating on the property to be taken. There are many nuanced eligibility requirements for business damages, so it is best if you discuss with knowledgeable, experienced attorneys to see if your business qualifies or what can be done to make it qualify. Unlike with property, the business owner will have to timely make a business damage claim to FDOT or else risk waiving the right to compensation.

It costs you nothing to fight: You have the right to have your legal expenses paid by the condemnor without any reduction in your compensation. Under Florida law, you have the right to make the condemnor pay your legal fees and costs in eminent domain cases, separately and in addition to your compensation.

This simple example using made-up numbers may help you to understand how your rights work:

Imagine that you are the sole owner of some property which a condemnor decides to take through eminent domain.

The condemnor appraises the property for as little as possible, and offers you $10,000 in the hope that you will accept it without asking for more. Instead, you hire experienced, knowledgeable eminent domain attorneys to help you.

The condemnor takes the property through eminent domain and pays you the $10,000 it offered as a good-faith deposit while you can fight for more. Soon, the case is resolved through settlement or a jury trial, and you get an additional $100,000.

Here is how much the condemnor would have to pay you and the members of your defense team instead of the $10,000 it originally offered:

You get full compensation.

You get the full compensation of $110,000, subject only to applicable taxes (such as prorated property taxes or capital gains taxes) and liens on the property (such as to secure a mortgage).

$110,000You

Legal fees are paid separately.

The condemnor is required to pay your legal fees, separately and in addition to your compensation. The precise amount of the legal fees is governed by Florida law, but in this case they would be equal to 33% of the $100,000 you received above the condemnor’s offer. Although the amount of the fees is calculated based on what you receive, you do not pay the attorneys’ fees, and none of your compensation will go to paying the fees.

+$33,000Lawyers

Costs of the defense are paid separately.

The condemnor is also required to pay the costs of your legal defense. In this instance, the defense team included an appraiser, a civil engineer, a land planner, and a surveyor. Although the condemnor has to pay them, their loyalty is to you and their job is to help you get full compensation. They are generally paid hourly, and in this example, the appraiser’s bill is $20,000, the civil engineer’s bill is $15,000, the land planner’s bill is $10,000, and the surveyor’s bill is $5,000.

+$20,000Appraiser
+$15,000Civil Engineer
+$10,000Land Planner
+$5,000Surveyor

Hiring attorneys is good financial sense.

If your property or business is threatened by eminent domain, you shouldn’t face it alone. You should get help. You can get the assistance of lawyers who are experienced and knowledgeable in eminent domain matters at no cost to you, with the goal of getting you the full compensation you are entitled to, which may be greater than what the condemnor has offered.

$193,000Total Paid by Condemnor
$0Total Paid by You

You have nothing to lose, and you may have everything to gain by fighting back.

There is no reason not to hire lawyers to protect your rights. Whether you own property alone or together with others, own an easement, rent, or own a business, you may be entitled to full compensation under Florida law due to a taking through eminent domain. The exact circumstances of your case will matter, so it is best to contact attorneys who are experienced and knowledgeable in eminent domain law for a free consultation.

What do I need to know to begin?

First, know your rights!

You can research the law yourself, but we recommend that you seek the advice and assistance of lawyers who are experienced and knowledgeable about eminent domain law and who are willing to go all the way to trial, if necessary. Hiring lawyers will not cost you anything and may help your case substantially.

Second, understand the condemnor’s reason for the taking, and what effect the taking will have on you and your property:

Lawyers who are experienced and knowledgeable about eminent domain law can help you find the answers to these questions and more.

What can I expect to occur?

First, the condemnor must appraise the property. It must give notice that its appraiser will inspect the property. You have the right to be present at the appraisal inspection, and to have lawyers present. The appraiser will send a report to the condemnor; you may also have a right to a copy of the report.

The condemnor must make an offer based on the appraisal to buy the property. If you are the owner and think their offer is too low, you can refuse to sell.

The next step is for the condemnor to go to court to use the power of eminent domain to take the property. The condemnor must prove to a judge that it has the right to do so. If it succeeds, the judge will only allow the taking if the condemnor deposits an amount of money with the court. The owner of the property is entitled to take that money as soon as it is deposited (subject to the claims of tax collectors, mortgage lenders, lien holders, and co-owners) as a sort of down payment for the property. If you are the owner, accepting the money does not mean that you agree to that amount and does not harm your case or keep you from getting more.

Now it’s your turn: You, your lawyers, and other members of your legal team, such as appraisers, accountants, arborists, engineers, and land planners — all paid for by the condemnor on your behalf — will work to determine the true value of the property and the right amount of compensation you are owed. The defense team will work with you to ensure you have a strong case.

Armed with this information, you and your lawyers can negotiate with the condemnor, either informally or through formal mediation. The expenses are paid by the condemnor. Most eminent domain cases are resolved this way.

If the case is not settled through an agreement, you can go to court and a jury of twelve people will decide how much compensation you will get. Legal fees and costs are paid separately and in addition to your compensation.

What about harm to my business?

If the taking will harm your business, and your business is eligible under Florida law, compensation for business damages is available even if you are a renter. The law is not as protective of businesses as it is of land so many conditions apply. Lawyers who are experienced and knowledgeable about eminent domain law can tell you if your business is eligible.

If your business is eligible, you must take the first step, by preparing and filing a claim for compensation within an appropriate time period. We routinely work with skilled experts who can help prepare your claim at no cost to you. It is often helpful to begin planning as early as possible.

Once you submit a claim, the condemnor can make a counteroffer. As with property, the claim can be resolved by negotiation, mediation, or trial.

What if my case goes to trial?

Eminent domain trials usually last three to five days. Twelve-person juries determine awards.

The condemnor goes first with regard to property value, while the property owner and/or business owner go first with regard to damage to the remain-ing property and business damages, if applicable. Each side presents evidence and expert testimony as to the issues at stake.

The jury will decide how much you are owed based on the evidence and testimony presented. The court will generally see that you are paid within 30 to 60 days after the trial. Appeals may be possible.

What is full compensation?

Full compensation consists of several elements. Which you will be entitled to receive depends on the details of your case, such as whether you own the property or a business operating there.