Protecting Property Interests and Rights in Eminent Domain Action and Government Takings: Part I

“Change is inevitable – except from a vending machine”—Robert C. Gallagher.  The history of human civilization has taught us that change through new land development is constant and a never ending occurrence.  Sure, land development ebbs and flows with economic cycles, but new construction can always be found somewhere at any given time.  With land development comes the need for new and expanded infrastructure, involving government action at some level.  Private citizens, whose property is in the crosshairs of government development plans, will receive notice that all or part of their property is subject to governmental taking — the proverbial offer that you can’t refuse.  Yet, thanks to the U.S. Constitution, private citizens are not without rights here.  This blog post is part I in a series of posts to assist private property owners with protecting their property interests, maximizing just compensation and ensuring entitlement to attorney’s fees in eminent domain actions and government takings.

“Eminent domain” is the power of a sovereign government entity, federal, state or local, to take or authorize the taking of private property for a public use, regardless of the owner’s consent.  However, the private property owner is entitled to just compensation pursuant to the Fifth Amendment to the U.S. Constitution.  Stated another way, when the government forces a private citizen to suffer a permanent physical invasion of his or her property, however minor that invasion may be, the government must provide just compensation to that citizen for that invasion.  Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).  The implication is that the just compensation for an owner forced to give up a two square-foot section of his yard for a street light will be significantly less than the just compensation for an owner forced to give up three acres of his property for a new highway.  A future post in this series will discuss how just compensation is to be determined and the tangential factors that can ultimately increase that just compensation amount.

Private property owners should be aware that the power of eminent domain can be delegated to non-governmental entities when they are acting on behalf of the government.  For example, corporations are often delegated this power.  In fact, corporations operating as public carriers, such as air and railroad transportation, have statutory eminent domain power when acting on behalf of the government.  See Fla. Stat. § 361.025.  Additionally, corporations involving public utilities, petroleum products, coal and natural resource pipelines also have this statutory power.  See Fla. Stat. §§ 361.06 & 361.08.

It is important for property owners to realize that a government taking cannot be prevented or defeated.  Assuming all constitutional requirements are met, if the government wants to take your property then it will.  Private citizens, however, have the right to legal proceedings to maximize their just compensation and to ensure the government taking is limited in scope to what is strictly necessary for the government to accomplish its purpose. See Rorabeck’s Plants and Produce, Inc. v. School Dist. of Palm Beach County, 853 So. 2d 473 (Fla. 4^th DCA 2003).

In Florida, private citizens are afforded the right to recover their legal costs and attorney’s fees incurred in both negotiating just compensation and defending an eminent domain action.  Fla. Stat. §§ 73.015(4) & 73.092.  Florida law entitling property owners to recover legal costs and attorney’s fees for eminent domain proceedings are perhaps the most favorable statutory fees provision in the State.  But property owners should be aware that entitlement to fees is not available until they receive a formal written offer from the condemning authority that meets all requirements under Florida law.  A future post in this series will provide more insight into the right to recover legal costs and the conditions precedent to this right under Florida law.

To summarize, private property owners should understand that the government, or other entities acting on behalf of the government, have the right to take private property for public use without the owner’s consent.  Owners cannot prevent or defeat a constitutional government taking, but are entitled to just compensation and, under Florida law, legal costs and attorney’s fees so  long as certain conditions precedent are met.  Stay tuned for Part II in this series which will discuss in more detail Florida law on the allowed scope of taking of private property.