Guide to Florida Eminent Domain Law

Florida Eminent Domain Blog | Gregory W. Stoner

The Florida Eminent Domain Law Firm, PA

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Friday, March 29, 2013

What Is Eminent Domain?

Eminent domain is the American term for a power generally recognized as belonging to the government in modern countries. In modern democracies and republics, this power is generally checked by certain procedures that restrict the government's ability to take private property.

Origins of the Term and Its Application

The term "eminent domain" is often traced back to its use by Dutch jurist Hugo Grotius in 1625, but the sense that the government or sovereign should be able to control over the ownership of property goes back at least to the Hebraic law, which limited the right of property owners to sell the land that had been given to them by God.

Evolving from this, feudal systems generally held that all land ownership is dependent on the indulgence of the king, who has the power to give or take land for any reason.

The first limitation of this sovereign right came in the Magna Carta (1215), which said that the king of England could not imprison a man or take his property without the "lawful judgment of his peers." By 1354, this had been adapted to the more modern language of "due process of law."

Eminent Domain in the US System

Protections granted to nobles under the Magna Carta were not necessarily extended to colonists in the New World. In fact, land grants in the New World were seen more like the feudal ones, being given by the king and capable of being rescinded for any and all reasons without justification.

Colonial governments also felt they had the right to give or take property as they saw fit. Public improvements were for the public good and benefited the land owner as well as their neighbors. Compensation was considered optional.

Then in 1777, the Vermont Constitution required compensation when private property was taken for public use. The Massachusetts Constitution of 1780 followed suit. However, when the Constitution was being written, state governments did not think eminent domain a good idea. Instead, it was inserted by James Madison who wrote the amendment, and tacked it on at the end.

Florida Law

Florida eminent domain law was initially based on the US Constitution, but after a monumental US Supreme Court decision (Kelo v. New London, 2005), Florida law was revised to ensure that private property was not taken to be given or sold to other private owners. It also ensured that owners received full compensation for their property.

Florida property law is very complicated depending on the specific situation of what kind of property you have and why it is being taken. To learn more about Florida eminent domain law, please visit the website of the Florida Property Rights Law Firm.

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Tuesday, March 26, 2013

Florida Eminent Domain Laws

If you are in Florida, you are lucky to live in one of the states that has done the most to restrict government's power to simply take your property for arbitrary reasons. Florida has enacted many laws that protect your property from being taken for the profit of another person. It means that the government cannot be used to strong-arm you for the benefit of billion-dollar investors.

Here are some of the ways that Florida law helps you protect your property from eminent domain abuse.

Government Must Negotiate with You First

Florida law requires pre-trial negotiation before eminent domain proceedings are started. This means that you should be given an offer from a government entity and an opportunity to respond with a counter-offer before the government attempts to take your land by force.

There is no rule that requires the government must take your offer, or even a requirement that it consider it, but by requiring pre-trial negotiation it gives you an up-front warning, and it gives you a chance to make a reasonable counter-offer without hiring an attorney.

Government Can't Give Your Property to Private Owner

In Florida, the government is not allowed to give or sell your property to another private owner. This is one of the most egregious abuses of eminent domain, when the local government acts on behalf of investors who do not want to pay fair market value for your property and forces you to sell your property to benefit investors.

Land in Florida can only be taken for legitimate public use.

Government Can't Use Blight, Slum, or Nuisance as a Cover for Illegal Taking

Another way that eminent domain is abused for private profit is by declaring property as blight or slum so that it can be taken and sold to investors connected to the government. The rationale for a blight, slum, or nuisance label can be as little as a broken screen door, weeds that are too tall, a car on blocks, or a noise complaint. These rationales can be trumped up on almost anyone's property, allowing them to take it for a fraction of full compensation.

In Florida, taking property for these reasons is banned, and many property owners have been able to keep their land when these tactics were used.

If you live in Tampa or elsewhere in Florida and you suspect the rationale for taking your property is not a legitimate public purpose, you should seek the help of an eminent domain lawyer to force the condemning authority to justify its taking.

To learn more about eminent domain laws in Florida, please visit the website of the Florida Property Rights Law Firm today.

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Friday, March 22, 2013

Florida Land Use Eminent Domain Laws

Land use is a crucial element in eminent domain laws. As a property owner, you have many options about what you can do with your land, but the government can restrict your land usage. This is a recognized part of government's role, to try to balance your private right to control your property with the public good and expectation of safety from various harms such as noise pollution, chemical pollution, or eye sores in their neighborhood.

However, sometimes the government may pass regulations that essentially result in an invasion, limitation, or even destruction of your property that may be considered an eminent domain taking. When this occurs, you may be able to get compensation for damage to your property value.

Regulatory Taking

Regulatory taking is when the government passes laws that greatly restrict your land use to the point that the property value is dramatically reduced. There are many potential regulations (such as zoning changes) that can reduce the value of your property, but these are not necessarily considered regulatory takings. Nor is it considered a regulatory taking if the new law is basically an explicit statement of an already extant law or interpretation of law, it must be a new law.

So, when does a new law exceed the limits of taking? When does it go too far and require compensation? In general, authorities in Florida (every state is different) consider the law as going too far when it results in:

• Physical incursion on property
• Destruction of property
• Preventing any reasonable use of property
• Placing an inordinate burden on property use

If this occurs, you may be able to get compensation with an inverse condemnation lawsuit, or seek compensation using the provisions of the Bert J. Harris Private Property Rights Protection Act, which has a lower standard of proof in many cases.

The Penn Central Test

The Penn Central test is a commonly used test for regulatory taking that arises from New York City's historic preservation regulations, which the owners of railroad stations claimed limited their ability to develop the stations for economic benefits. The Penn Central test has three basic elements:

• How much economic impact does the regulation have on the owner?
• How much does the regulation interfere with investment-backed expectations?
• Is the government action an actual invasion of the property, or is it more like a balancing of public and private benefits and costs?

Essentially, if the government's regulations cost you significant amounts of value, value that has been backed by actual investment (ex: you've hired planners to develop the property for a usage that is now against the regulation), and constitutes an actual incursion on your property or its uses, then it may be considered a regulatory taking.

If you think your property has been adversely affected by a new law, you should talk to an eminent domain attorney about the change and whether it constitutes eminent domain.

To learn more about eminent domain laws in Florida, please visit the website of the Florida Property Rights Law Firm today.

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Saturday, March 16, 2013

What is the process for eminent domain cases?

The condemnation process can be confusing. Here is a breakdown to help you understand how it works.

Planning and Surveying

First, government entities are required to submit plans for a project for appropriate oversight. These plans should be carefully evaluated and based on them the work site should be surveyed to determine exactly what property is necessary for the completion of the project. This may include not only the project itself, but environmental offsets and drainage areas.

Pretrial Negotiation

Florida law requires that the government try to negotiate with you for your property before beginning eminent domain actions. You should receive an offer and can make a counter-offer. If the government doesn't want to buy your property for what you are willing to sell it, they will begin eminent domain proceedings.

Order of Taking Hearing

At this hearing, you can protest the taking of your property. If the condemning authority can establish they need your property for a valid public purpose, you will lose your property and be paid only what the government considers fair compensation.

Full Compensation Hearing

At this hearing, you will be able to argue in front of a jury that you deserve more compensation for your property. You can present alternate appraisals and additional considerations left out of the government's estimate. If you are awarded more than the government's offer, the government will pay you interest, court costs, and attorney's fees.

Appeals

After the compensation hearing, either you or the government can appeal the ruling. Several appeals are possible: they sometimes go to the US Supreme Court.

If you are facing condemnation of your property in Tampa or anywhere in Florida, don't go it alone. Please contact the Florida Property Rights Law Firm today for a free initial consultation on your legal rights and options.

posted by Admin at 1:18 PM 0 comments

Tuesday, March 12, 2013

What determines compensation for my property?

Getting full compensation for your property requires an understanding of the complex laws that govern eminent domain, and is significantly different for business and private property and partial takings and full takings.

Full Taking Compensation

In a full taking, your compensation is based on the appraisal of the property according to its potential. This means that an appraiser must take into consideration the property's "highest and best use."

Although you initially have to accept the government's assessment, you can get full compensation as determined by a jury at a special compensation hearing. If this compensation is more than the government's offer, you not only get the additional money, you get interest from the date of the taking to the date of the full compensation finding, and the government pays court costs and attorney's fees.

Partial Taking compensation

In a partial taking, your compensation is based on the property taken, but also on the decreased value of the property that is left behind. If, for example, your smaller lot cannot now be used for certain purposes, you have to be compensated for your reduced development options. This payment for damage to the rest of your property is known as "severance damages."

Business Damages

Most of the time, business damages are not considered part of full compensation, but they may be granted any time your property is taken in an eminent domain action. However, if part of your property is taken, you may be given significant business damages if the partial taking forces you to relocate.

If you want to get full compensation for your property, you need the assistance of an experienced eminent domain attorney. For help with an eminent domain action in Tampa or across Florida, please contact the Florida Property Rights Law Firm today for a free consultation.

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Friday, March 8, 2013

How can I stop the eminent domain process and keep the government from taking my land?

In order to stop the government from taking your property, you must show that the entity in question doesn't have condemning authority, that the use for which condemnation is occurring is not a legitimate public use, or that your property is not actually essential to the project.

Condemning authorities are generally government entities. They are state, county, or municipal government departments or divisions. They may also include utilities. Sometimes they include private entities specifically given condemnation authority for use in building public improvements (such as a private roadway company). Sometimes, private entities or contractors may attempt to utilize eminent domain without having received specific commission to do so.

Public purpose is strictly defined in Florida law. It cannot include the turning over of your property to a private developer or investor for the mere purpose to increasing economic activity in the area. It also cannot include the elimination of blight, nuisance, or slum. Unless a condemning authority can show a valid public purpose, they cannot take your property.

Essential property should be established by a condemning authority by survey before seeking the land. Sometimes, though, these surveys are off. Other times, there are multiple sites that will work equally well for a project, and disputing a petition can make the government use one of the other sites.

Actually protecting your property from eminent domain takes the assistance of an experienced eminent domain attorney. If you want to protect your property from eminent domain in Tampa or across Florida, please contact the Florida Property Rights Law Firm today for a free initial consultation.

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Monday, March 4, 2013

What should I look for when selecting an appraiser for an eminent domain case?

If you have received an offer for compensation from a taking authority, that offer is based on an estimate of your property's value made by an appraiser who works for the condemning authority. In Florida, you have the right to look at this appraisal, and if you request it, a copy will be sent to you in 15 days.

You only have a limited amount of time to respond to this offer (generally 30 days), and it's important to make the right response. If you do not take an offer that is accurate, you may end up having to pay for court costs and attorney's fees. If you accept an offer that is below the actual value of your property, you are missing out on potentially significant gains, not to mention the fact that your court costs and attorney's fees would be covered.

In the limited amount of time you have to respond to the offer, you should not take your time trying to find an appraiser. Instead, you should consider your options for finding an eminent domain attorney. The attorney will not only be able to look at your offer and tell you whether it's likely to be accurate or low--he can connect you to an appraiser that can be trusted to not only give you an accurate appraisal, but one that's likely to stand up in court.

However, if you do want to select an appraiser on your own, here's a few things to look for:

• Experience with eminent domain cases

• Experience working for property owners--not just the government

• Experience with your type of taking, such as partial taking or business property

• An understanding of the area in which your property is located

Be very careful when selecting an appraiser--if the appraisal is at or below that of the state, it can be used in evidence against you, even if you find and hire another appraiser.

At the Florida Property Rights Law Firm, we offer free consultations. We can look at the offer from the government and let you know if it will be worth your time and effort to fight for additional compensation.

If you are facing an eminent domain action in Tampa or elsewhere in Florida, please contact the Florida Property Rights Law Firm today for a free initial consultation.

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