Florida Eminent Domain Issue: Business Damages

The vast majority of Florida businesses use private property to conduct their commercial enterprises.  For many of these businesses, road frontage and high traffic count are critically important to the businesses’ success.  Fast food and petroleum marketer businesses, for example, depend on road frontage and heavy traffic to attract their customers.

This proximity to busy roadways makes these businesses a prime target for an eminent domain acquisition.  Indeed, community and political pressure often demand that traffic is improved, and the widening of roads — and the corresponding taking of businesses’ private property rights — usually follow.

Fortunately for Florida businesses, Florida’s eminent domain laws contain strong protections for commercial entities faced with an eminent domain taking.  These protections enable business owners to be paid fully and fairly for the taking of their property rights, and that compensation can, in certain circumstances, even include business damages.

In Florida, business damages consist of, “lost profits, loss of goodwill, and costs related to the moving and selling equipment” that are attributable to an eminent domain taking.  See Systems Components Corp v. Dep’t of Transportation, 985 So.2d 687, 690 (Fla. 5th DCA 2008).

For a Florida business to qualify for business damages, the business must:  (1) have been established at the place of the taking for at least five years; (2) be subject to a partial — as opposed to a whole — taking of property by a Florida public entity (e.g., the Florida Department of Transportation, a county, or a city); (3) utilize the part of the property acquired in the conduct of the business; and (4) meet certain procedural requirements (e.g., the business must file a business damage claim and supportive information in a timely fashion).

Fixel & Willis’s attorneys, through their decades of experience practicing Florida eminent domain law, have handled hundreds of eminent domain matters for Florida businesses. This experience has enabled Fixel & Willis to handle eminent domain matters for almost every conceivable type of Florida business, including restaurants, retail stores, hotels/motels, petroleum marketers sites, mini-storage businesses, insurance agencies, printing businesses, farming operations, medical offices, banks, and auto centers.

In handling these business related claims, Fixel & Willis’s attorneys learn about the unique qualities of each affected business and associate well-trained business valuation and site analyst experts to detail how that particular business will be affected by the relevant taking of property.  If you have a question about how your business may be affected by eminent domain taking in Florida, please contact Fixel & Willis’s firm administrator, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at 1-800-848-7535.

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Florida Eminent Domain Issue: Severance Damages

Thousands of Florida property owners face the same dilemma every year.  A condemning authority (e.g., a government or utility company) seeks to acquire some – but not all – of a property owner’s land.  To do so, the condemning authority makes a monetary offer to the property owner.  Should the property owner accept the offer or negotiate (and potentially litigate) for additional money?

One factor that should be considered, but is not always readily apparent, is that the taking may damage the property owner’s remainder property (the land the property owner will continue to own after the taking).  Such damages are called “severance damages”.  And, they accrue for a variety of reasons, including:  (1) alterations in shape and size of remainder property; (2) unfavorable drainage or grading changes to the remainder property; and (3) access issues resulting from the taking.

One important reason to account for these severance damages is that they can be costly.  Consider, for example, the following hypothetical scenario:

  • A Florida property owner owns 1.2 acres of vacant property in a large metropolitan area.
  • The property is valuable because it is zoned for heavy commercial use and can be commercially developed.
  • In the city where the property is located, a local regulation requires that property be of at least 1.0 acres in size to be commercially developed.
  • A condemning authority seeks to acquire .4 acres of property from the affected property owner.
  • After the eminent domain taking, only .8 acres of land will be owned by the property owner, and the city’s regulation will prevent the remainder property from being commercially developed.
  • This impact drastically reduces the value of the entire property.  Even though the condemning authority is only taking 1/3 of the square footage of the property, the value of the entire property will be materially reduced.

The good news for Florida property owners faced with this or a similar situation is that Florida eminent domain law requires condemning authorities to pay for these damages to the remainder property.  See Fla. Stat. § 73.071(3)(b) (2011) (eminent domain damages “shall” include “any damages to the remainder [property] caused by the taking”).

The bad news for Florida property owners is that Florida condemning authorities tend not to adequately compensate for (or, in some cases, even recognize) these damages in their initial monetary offers to property owners.

One advantage of hiring Fixel & Willis is that its attorneys will enlist the assistance of experienced eminent domain professionals (appraisers, site analysts, and engineers) to search for and calculate severance damages for each and every client.  If severance damages exist, Fixel & Willis attorneys will negotiate and, if necessary, litigate to ensure the affected client is fully compensated for these damages.

If you own Florida property that may be subject to an eminent domain taking and you have a question regarding severance damages or any other Florida eminent domain issue, please contact Fixel & Willis’s firm administrator by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at (800) 848-7535.

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Florida Eminent Domain Issue: Attorneys’ Fees

Under Florida eminent domain law, it is constitutionally mandated that property owners’ attorneys are paid reasonable fees by the condemning authority (e.g., the governmental entity or utility company taking the property at issue).  This constitutional protection does not mean that the affected property owners’ attorneys work for the condemning authority.  They do not.  They work solely for the affected property owner.  Florida’s rule simply means that the property owners’ attorneys — after having worked for the affected property owner — will have their fees paid by the condemning authority at the end of the case.

This is an important protection for Florida property owners, and it is not a protection shared by all of the other states.  In neighboring Georgia and Alabama, for example, property owners — not the condemning authority — must bear the burden for paying their attorneys and experts in eminent domain cases.

In these neighboring states, it can be difficult, if not impossible, for affected property owners to use the legal system to challenge a condemning authority’s assessment of the value of the property taken and the damages caused by an eminent domain taking.  In Georgia and Alabama, litigation and trial costs can overwhelm the compensation for the property taken, and the property owner can be left with nothing.

In Florida, such a dire result will not occur.  Florida property owners will not have to pay attorneys and experts to review their eminent domain cases and seek full compensation for the property acquired and resulting damage to remaining property.  This constitutional protection allows Florida property owners to challenge condemning authorities’ assessments of the compensation due to them because of an eminent domain taking.

If you own property in Florida that may be affected by an eminent domain taking and you have questions or concerns about how attorneys’ fees are paid under Florida law, please contact Fixel & Willis’s firm manager, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at 1-800-848-7535.

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Florida Eminent Domain Issue: The Timing of Road Projects

There are three phases to every Florida road project: (1) design; (2) right of way acquisition; and (3) road construction.  These three phases usually occur in the same order.  The government usually first hire engineers to design the project and determine what right of way must be acquired.  Next, the government acquires the right of way it needs. And finally, after obtaining the needed right of way, the government constructs the road project.

All three of these road project phases require funding from the Florida governmental entity building the road, and given this dependency, the timing for each of these phases can change quickly and often.  The Florida Department of Transportation (“FDOT”), for example, issues five-year plans that indicate when within a five-year window each of these three phases will occur for FDOT’s prioritized road projects.  The priority and timing of these projects typically changes numerous times throughout the life of a project.  Sometimes, a project will be drastically sped up; other times, the FDOT can be delay a project by years.

One advantage of hiring Fixel & Willis is that the firm has a team of dedicated employees that track the status road projects throughout the state.  If a project’s status changes, Fixel & Willis notifies its affected property owner clients of the change and explains how the change may impact their property.

If you have a question about the timing of a Florida road project that may impact your property or about any other issue related to Florida eminent domain, please contact Fixel, Maguire & Willis’s firm administrator, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at 1-800-848-7535.

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Florida Eminent Domain Issue: Mediation

One reason some Florida property owners are hesitant to hire a lawyer is that they worry it will cause them to end up in the courtroom.  These property owners fear that hiring an attorney will cause a near-certain trial, which will cause a significant disruption in their lives.

While understandable, this fear is almost always not justified.  In Florida, an eminent domain trial is a far from certain event.  Fixel & Willis attorneys, for example, have settled (without going to trial) approximately 95% of the thousands of Florida eminent domain matters they have handled.  Many of these matters were even resolved pre-lawsuit, without utilizing the court system at all.

Many more were settled after suit was filed, but well before trial.  One effective tool utilized by Fixel & Willis attorneys to settle many of these eminent domain lawsuits is mediation.  Mediation is a formal settlement negotiation that occurs outside the courtroom.  It is led by a neutral third-party attorney, who earnestly discusses with both the property owner and the condemning authority the pros and cons of their cases.

Fixel & Willis’s attorneys have successfully mediated all types of Florida eminent domain cases with a variety of condemning authorities.  One reason Fixel & Willis attorneys have succeeded in mediating these cases is that they believe a primary goal of mediation is to determine the maximum amount of money and additional non-monetary benefits the condemning authority will offer to settle a case.  Once this offer is revealed, Fixel & Willis attorneys will advise, analyze, and make recommendations to their property owner clients about the potential settlement.

This honest and educated assessment assists Fixel & Willis’s clients in making informed decisions about their case, and it often results in Fixel & Willis’s clients obtaining full compensation without the burden of trial.

If you own property in Florida that may be subject to an eminent domain taking and you have a question about the potential mediation of your matter, or any other eminent domain issue, please contact Fixel & Willis’s firm administrator by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at 1-800-848-7535.

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Florida Eminent Domain Issue: Inverse Condemnation

Florida law has long recognized that eminent domain is a harsh proceeding.  In eminent domain proceedings, private property owners – through no fault of their own – will have their land taken from them.  Private property owners typically have no choice in the matter.  They must give up their property, no matter whether they have been living or working on the property for decades.

Because eminent domain is such a harsh proceeding, Florida law provides numerous procedural safeguards to protect private property owners before their property can be taken.  As just a few examples, to take private property via eminent domain in Florida, condemning authorities (e.g., governmental entities vested with the power of eminent domain) must:  (1) upon request, provide property owners with an appraisal of the value of the taking; (2) provide a good faith deposit for the value of the taking; and (3) provide evidence of the public necessity for the project that causes the taking.

Despite these well-established legal safeguards, some Florida condemning authorities have chosen to ignore them.  These condemning authorities have taken private property without notice or compensation to private property owners.

When a condemning authority oversteps its authority in this way, private property owners have a remedy.  They can sue for inverse condemnation.

In an inverse condemnation case, a judge will make an initial ruling to determine whether the condemning authority illegally took the property at issue.  If the judge determines that an illegal taking occurred, the Court will enter an Order of Taking, and the case will proceed to the compensation phase.  During the compensation phase, discovery will occur regarding the value of the property taken and resulting damages to any remainder property.  After the completion of discovery and if the case does not settle, a jury trial will resolve whatever compensation issues exist.

The attorneys at Fixel & Willis, through their decades of experience representing private property owners, have handled many inverse condemnation cases throughout the state of Florida.  If you have a question about inverse condemnation or any other Florida eminent domain issue, please contact Fixel & Willis’s firm administrator, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com or by telephone toll-free at 1-800-848-7535.

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Florida Eminent Domain Issue: Order of Taking Proceedings

There are two methods by which property interests can be condemned in a Florida eminent domain proceeding.  The first type of proceeding is the rarely utilized “slow take” proceeding.  In a “slow take” proceeding, before title to the property at issue is transferred, a trial will be held to determine the value of the property interests that may be acquired and the accompanying damages.  If the value determined is acceptable to the condemning authority (e.g., the government or utility company forcibly acquiring the property), the condemning authority will pay that price and acquire the property.  If it is not acceptable, the condemning authority will not take title to the property at issue and will not pay the corresponding money to the property owner.

The second type of proceeding, the quick take proceeding, is utilized in the vast majority of Florida eminent domain cases.  In a “quick take” proceeding, the condemning authority will acquire the property interests at the beginning of the case, without first knowing what the final value of the property and accompanying damages will be.  To do so, the condemning authority will deposit in the court registry a good faith estimate of the value of the property interests acquired.  Once that good faith estimate is deposited and an order of taking is entered, title will transfer from the property owner to the condemning authority.  After title has transferred, the parties will proceed to litigate whether the affected property owner is due additional compensation.

Fixel & Willis’s attorneys, through decades of experience representing private property owners, have handled both types proceedings, including hundreds of “quick take” cases.  If you are a Florida property owner facing an eminent domain taking and you have any questions or concerns regarding a Florida eminent domain issue, please contact Fixel & Willis’s firm administrator, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com, or toll free at 1-800-848-7535.

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Florida Eminent Domain Topic: Severance Damages Due to Change in Shape

Under the Florida Constitution, a condemning authority (e.g., a governmental entity, like the Florida Department of Transportation) must pay “full compensation” to a property owner when forcibly acquiring property via eminent domain.  See Art. X, §6(a), Fla. Const.

In Florida, “full compensation” includes both the value of the property taken by the condemning authority and the devaluation to any remainder property caused by the taking.  See Florida Department of Transportation v. Armadillo Partners, Inc., 849 So.2d 279, 283 (Fla. 2003) (“Full compensation for the taking of private property by eminent domain includes both the value of the portion being appropriated and any damage to the remainder caused by the taking.”) (internal citations omitted).

This devaluation to remainder property is called “severance damages”, and these damages can occur when a condemning authority takes part, but not all, of a piece of property via eminent domain.  Armadillo Partners, Inc., 849 So.2d at 283 (“The damage to the remainder caused by the taking is also referred to as severance damages, damage caused by severing a part from the whole”).

This blog entry discusses severance damages caused by alterations in shape.

Alterations in the shape can lessen the value of remainder property, causing compensable severance damages under Florida eminent domain law.  Florida Eminent Domain Practice and Procedure §11.8 (2012) (listing change in shape as the basis for a severance damage claim in Florida).

A classic example of severance damages caused by an alteration in shape arises when a square or rectangular piece of property becomes a triangle due to an eminent domain taking of a portion, but not all, of a piece of property.

Professional real estate appraisers working with the Florida eminent domain law firm of Fixel & Willis have studied many examples of properties that have undergone alterations of all shapes and sizes and have determined that triangulated pieces of property often sell for less than otherwise comparable properties that are squares or rectangles.  Armed with this evidence, Fixel & Willis’s attorneys have negotiated many significant settlements that provide severance damages to property owners whose property becomes trinagulated because of an eminent domain taking.

If you have a question or concern regarding whether the taking of a part of your property may cause severance damages to remainder property or if you have any other questions regarding Florida eminent domain law, please contact Fixel & Willis’s firm administrator, Susie Harris, by email at sharris@floridaeminentdomainattorneys.com, or toll free at 1-800-848-7535.

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