Many property or business owners are contacted by government to receive an offer to purchase their property under a threat of condemnation without any background knowledge about the power of eminent domain held by state and local governments. Their first question to us, naturally, is what is eminent domain?
Eminent domain is the sovereign power held by governments to take privately owned property which is reasonably necessary for a public purpose. It has traditionally been used to provide roads, bridges, schools and utilities. Modern jurisprudence has sought to expand such power. Florida Statutes Chapters 73 and 74 lay the statutory framework for condemnation in Florida. We reference these statutes as Florida’s Eminent Domain Code. Both the statute, and the application of the statute by government agencies seeking to acquire private property, must conform to the protections afforded by both the Constitution of the State of Florida and the United States Constitution. Essentially, by social contract, both state and federal constitutions limit the sovereign power of eminent domain by (1) prohibiting takings that are not for public purpose and (2) requiring payment of just, or full, compensation when a taking is for public purpose.
There are essentially two stages to an eminent domain proceeding. At the initial stage, if the government agency can show public purpose and reasonable necessity, the court will authorize the use of the eminent domain to take the property. This is a question of law to be determined by a trial judge at a bench trial, following the filing of a lawsuit. The bench trial is commonly referred to as a hearing on “order of taking.” If an “order of taking” is entered, the second stage of an eminent domain proceeding is to determine the measure of just, or full, compensation to be paid the property or business owner. If parties are not able to mediate a settlement beforehand, the measure of just, or full, compensation is decided by a 12-member jury trial.
An owner should also be aware that the government may avail itself of either a “quick” take or “slow” take. Under a “quick” take, the government can take title and possession of the property at the front end of the eminent domain proceeding after entry of an “order of taking.” Such procedure follows Chapter 74, Florida Statute. Title and possession, however, do not vest until the government makes a good faith deposit of its appraisal estimate. The owner may withdraw this initial deposit without any prejudice to claiming a greater amount of money as just, or full, compensation. The government is committed to the taking once title and possession vest and cannot then abandon the taking. A “slow” take, by contrast, requires that the jury trial on the measure of just, or full, compensation proceeds before government is able to take title and possession of the property. However, the government is not committed to the taking, and may decide to abandon the taking if the jury verdict is more than what the government wants to pay.
In Florida, the attorneys’ fees and cost to defend against government are part of the measure of full compensation. Such fees and costs are paid on top of, or in addition to, the amount determined for the property or business owner to receive for the property taken and any severance or business damages. This legal precedent in Florida was established in the 1950 case of Dade County v. Brigham by E.F.P. Brigham, Andrew Brigham’s grandfather. Thus, in Florida, a property or business owner has a level playing field in which to defend their property rights. The owner can be made whole, receiving the full measure of compensation for the taking, without it being diminished for the cost of defending a lawsuit that the owner did not ask for nor wanted in the first place.
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