Protecting Property Interests and Rights in Eminent Domain Actions and Government Takings: Part IV

This blog post is part IV in a series of posts to assist private property owners with protecting their property interests and rights in eminent domain actions and government takings.  Part I provided a general overview of eminent domain and the government’s ability to take private property for public use.  Part II discussed Florida law on the allowable scope for the taking of private property, which is determined by the element of reasonable necessity.  Part III addressed regulatory takings.  This post will discuss “just compensation” and how it is determined.

“Just compensation” is defined as the full payment for the property of which the private owner will be deprived.  Meyers v. City of Daytona Beach, 158 Fla. 859 (1947).  A taking of private property by the government or an entity acting on behalf of the government without the payment of just compensation to the property owner violates both state and federal law.  See Art 1. § 9, Fla. Const.; U.S. Const. Amend V.  This constitutional protection for the payment of just compensation for condemned property is to ensure private owners are adequately and fairly compensated for their property.  Thus, just compensation is a byproduct of due process mandates under the law.  Abell v. Town of Boynton, 95 Fla. 984 (1928).

Just compensation encompasses not only the value of the underlying property but also the expenses for determining the proper valuation of the property, which can include fees for appraisers and other expert costs incurred by the property owner.  See Sarasota County v. Burdette, 524 So.2d 1064 (Fla. 2d DCA 1988).  Even if the condemning authority takes only an easement or merely a right-of-way over the property, leaving the rest to the private owner, just compensation must be paid for that limited portion taken.  Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).  Stated another way, just compensation is required regardless of whether the interest taken constitutes the entire parcel or merely a part of the overall land.  Id.

Before initiating formal legal proceedings, the condemning authority must attempt good faith negotiations with the private owner for the just compensation amount to be paid.  Fla. Stat. § 73.015(1).  Under Florida law, the condemning authority must provide the owner with a written offer and, if requested by the owner, a copy of the appraisal upon which that offer is based.  Id.  If an agreement is reached during pre-suit negotiations, the private owner who settles the compensation claim in lieu of formal condemnation proceedings is entitled to recover costs incurred in negotiations, including mediation fees, valuation expenses and business damage estimates.  Fla. Stat. § 73.015(4).  Entitlement to recover expenses for attorney’s fees may be available in certain situations.

If the parties cannot reach an agreement, the court must decide the question of just compensation in formal condemnation proceedings.  However, the property owner must be given at least 30 days to respond after receipt of the written offer before a condemnation proceeding can be filed in court.  Fla. Stat. § 73.015(1)(b).  If condemnation proceedings are required, any evidence of negotiations during pre-suit meditation or other discussions between the parties are inadmissible in the court action, except for a determination of reasonable attorney’s fees if they are available.  Fla. Stat. § 73.015(5).  Stayed tuned for Part IV in this series, which discusses the property owner’s entitlement to attorney’s fees in eminent domain proceedings.