When the Florida Department of Transportation (FDOT), a county, city or another governmental entity needs private property for a road or other public project, the property owner may receive a notice, appraisal or written offer. That offer can feel like the beginning and end of the process. It is not.

Florida eminent-domain law provides a process for government acquisition of private property for a public purpose while protecting the owner's right to compensation. Depending on the circumstances, the amount at issue can involve more than the government's initial valuation of the land physically being acquired.

What Is Eminent Domain?

Eminent domain is the government's power to acquire private property for a public purpose through condemnation proceedings. Transportation projects are a common example. FDOT or another condemning authority may seek an entire parcel, but many cases involve only a portion of a property.

A partial taking can raise two separate valuation questions: what is the property being acquired worth, and what effect does the acquisition have on the property that remains?

The Government's First Offer Does Not Necessarily Determine Full Compensation

Florida's presuit eminent-domain process generally requires a condemning authority to negotiate in good faith with the fee owner and make a written offer before filing a condemnation action. Upon request, the owner is entitled to specified appraisal information. Property owners should understand what was valued and the assumptions underlying the government's offer.

• the government's appraisal and written offer;
• right-of-way maps, construction plans and the extent of the acquisition;
• land, buildings, improvements and other affected property interests;
• access, parking, circulation or visibility;
• the value and utility of property remaining after a partial taking;
• leasehold or other ownership interests; and
• potential business damages when Florida's statutory requirements are satisfied.

Partial Takings and Severance Damages

Some of the most significant condemnation disputes arise when the government takes only part of a parcel. A relatively small acquisition can potentially affect the usefulness or value of a much larger remainder.

Florida eminent-domain law recognizes severance damages in appropriate partial-taking cases. These concern a reduction in value to the owner's remaining property caused by the taking. The analysis is property-specific and can require appraisal and other expert evidence.

Can a Business Recover Damages?

Florida law permits business damages in certain qualifying partial right-of-way condemnation cases. These claims have specific statutory requirements and should not be assumed to exist in every condemnation. For a qualifying business, however, the economic effect of the taking can become an important component of the compensation case.

What Is an Order of Taking?

Some Florida condemnation cases proceed under the Chapter 74 “quick-take” procedure. A qualifying condemning authority can seek an order permitting the acquisition to proceed before the final compensation trial, subject to the statutory process and required deposit.

An order of taking therefore does not necessarily mean that the final amount of compensation has been decided. The compensation dispute can continue after the taking.

Who Decides Compensation If the Case Does Not Settle?

Florida Statute §73.071 provides for a 12-person jury to determine compensation when the compensation issue proceeds to trial. Appraisals, expert testimony, project plans, damages evidence, depositions, cross-examination and the ability to explain the taking to jurors can all become important.

Who Pays the Property Owner's Attorney's Fees and Costs?

Concern about the cost of hiring counsel should not prevent a property owner from obtaining advice. Florida's eminent-domain statutes provide for property-owner attorney's fees and reasonable defense costs in qualifying condemnation proceedings. Section 73.091 addresses costs and §73.092 governs attorney's fees, which are generally based on the benefits achieved for the client under the statute.

St. Johns Law Group offers a free initial consultation for property owners facing a potential eminent-domain or condemnation matter.

First Coast Expressway and Other Northeast Florida Road Projects

Major transportation projects throughout Northeast Florida illustrate why eminent domain can become important to property owners. The First Coast Expressway (SR 23), including work in St. Johns County around CR 2209/St. Johns Parkway and CR 16A, is one example of a project that can involve right-of-way acquisition.

A property owner does not need to wait until a condemnation lawsuit is filed to seek legal advice. If you receive an acquisition letter, appraisal, right-of-way map, written offer or other communication concerning a government project, early review can help identify the issues before important decisions are made.

What Should You Do If the Government Wants Your Property?

1. Understand exactly what property or property interest the government intends to acquire.
2. Review the government's appraisal, offer and project plans.
3. Determine whether the project affects the value or use of property that remains.
4. Identify potentially compensable property, leasehold, business or other interests.
5. Understand the applicable deadlines and condemnation procedure.
6. Speak with eminent-domain counsel before accepting the offer or signing acquisition documents.