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

This blog post is part V 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, and Part IV explained how “just compensation” is determined.  The fifth and final addition to this series concerns a property owner’s entitlement to attorney’s fees in eminent domain proceedings.

A property owner faced with a governmental taking of his or her property is likely to seek legal representation, but a great concern is whether these attorney’s fees and associated costs are recoverable from the condemning authority.  In Florida, attorney’s fees are only recoverable if expressly provided for by either contract or statute.  Eminent domain is one area of Florida law where the right to recover attorney’s fees is codified in the statutes.  Other costs incurred by owners defending themselves in condemnation proceedings are also recoverable.

While available under Florida law, certain conditions must be met before these fees and costs are recoverable.  First, attorney’s fees are only recoverable after a property owner receives a formal written offer from the condemning authority.  Stated another way, attorney’s fees incurred by a property owner prior to receiving this formal written offer are unavailable.  See Fla. Stat. § 73.092(1)(a).  Second, the property owner must receive a benefit from obtaining legal counsel.

A formal written offer in the context of condemnation proceedings is defined as an offer that makes reference to the eminent domain statutes, expresses the offer in certain and definite terms, is immediately binding upon acceptance by the owner, and contains no contingencies.  Pompano Beach Community Redevelopment Agency v. Holland, 2011 WL 4056251 (Fla. 4^th DCA 2011).  An offer that is subject to contingencies and does not obligate the government to purchase the property is not a formal written offer for the purposes of recovering attorney’s fees.  Florida Dept. of Agriculture and Consumer Services v. Bogorff, 132 So. 3d 249 (Fla. 4^th DCA 2013).  After a condemning authority issues a formal written offer to a property owner, negotiations for payment of the underlying property usually commence and a property owner may want legal representation for these negotiations.  If a settlement is reached prior to the filing of a lawsuit, the property owner who settles a compensation claim in lieu of condemnation proceedings is entitled to recover costs in the same manner as would be available in litigation.  Fla. Stat. § 73.015(4).

If litigation is necessary, the condemning authority shall pay the attorney’s fees as well as all reasonable costs incurred in the owner’s defense of the proceedings in the circuit court.  Fla. Stat. § 73.091(1).  Under Florida law, a court in eminent domain proceedings shall award attorney’s fees in favor of the property owner based solely on the benefits achieved for the property owner by his or her attorney in litigation.  Fla. Stat. § 73.092(1).  Florida law does not provide for the consideration of any factor for the recovery of attorney’s fees other than the benefits to the property owner in eminent domain litigation.  Sarasota County v. Curry, 861 So.2d 1239 (Fla. 2d DCA 2003).  The term “benefits” means the difference between the final judgment or settlement and the last written offer made by the condemning authority before the property owner hires an attorney.  Fla. Stat. § 73.092(1).  If no written offer is made by the condemning authority before the property owner hires an attorney, benefits must be measured from the first written offer after the attorney is hired.  Id.  The court may also consider nonmonetary benefits obtained for the property owner through the efforts of his or her attorney, so long as these nonmonetary benefits are recognized by the court and can be quantified.  Id.

Regarding other recoverable costs beyond attorney’s fees, due to the constitutional guaranty of just compensation for the taking of private property, just compensation cannot be diminished by the costs of the proceeding incurred by property owners.  Orange State Oil Co. v. Jacksonville Expressway Authority, 143 So. 2d 892 (Fla. 1^st DCA 1962).  Thus, court costs and other costs of litigation are recoverable.  This also includes reimbursement for a property owner’s expert witnesses needed during the condemnation proceedings.  See Florida East Coast Ry. Co. v. Martin County, 171 So.2d 873 (Fla. 1965).  A final word of caution to property owners who may be facing a governmental taking of their property, attorney’s fees and other costs are not recoverable, even if the owner acts in good faith in retaining an attorney, where the condemning authority abandons the project and never files a condemnation action.  Calhoun, Dreggors & Associates v. Volusia County, 26 So. 2d 624 (Fla. 5^th DCA 2009).