The Condemnation Process
  1. What is eminent domain / Condemnation?
  2. Employ your experts
  3. Understand the project
  4. Initial offer
  5. Eminent domain lawsuit
  6. Order of taking hearing
  7. Preparation of your case
  8. Mediation / Settlement negotiations
  9. Trial
  10. Attorney's fees and expert costs hearing

Eminent Domain / Condemnation Process

  1. What is eminent domain / Condemnation? [top]
    1. Eminent Domain or Condemnation is the legal process that the government, or entity with governmental authority, may use to acquire private property for a public purpose.
    2. The power to take private property via eminent domain is granted to the government through the Federal and State Constitutions and through various statutes.
    3. The entity exercising the power of eminent domain is called the condemning authority. The property sought for condemnation is called a parcel.
    4. Typically, all government entities have the authority to take private property by eminent domain. Many government entities can share the power of eminent domain with semi-private entities such as utility companies.
    5. The condemning authority is usually represented by one or more attorneys and one or more representatives, an engineering department or consultants, real estate appraisers, planners, accountants, etc. A whole team of experts is assembled to design and proceed with the proposed project which includes the taking of your property.
  2. Employ your experts [top]
    1. The first step is to understand your rights in an eminent domain case. The only way to discover your rights is to research the law yourself, or to employ experienced legal counsel to help you.
    2. In a typical eminent domain case, your legal fees and costs are paid by the condemning authority as part of full compensation to you, the property owner. In addition, your expert witnesses’ fees and court costs will be paid.
    3. Therefore, you have nothing to lose and everything to gain by seeking help with your case.
    4. Experts may assist you in negotiating a pre-suit settlement with the condemning authority if possible or, at least, evaluate the initial offer made by the condemning authority for the taking of your property.
  3. Understand the project [top]
    1. You should understand the impact the project will have on your property.
      1. What portion of your property is being taken?
      2. Why is it being taken?
      3. What is the purpose of the project?
      4. How will the project impact your remaining property/business?
    2. Your experts will help you understand and answer these questions.
    3. Discover whether or not the project can be modified to lessen or avoid the potential impact to your property. Are there any alternatives to the project that have not been fully considered?
  4. Initial offer [top]
    1. The condemning authority is required to make a good faith offer for the taking of your property. However, "good faith" does not always mean full compensation. You may:
      1. donate your property.
      2. voluntarily sell your property for the offered amount.
      3. proceed with the eminent domain case and seek additional compensation.
    2. Your experts can help you decide the best course of action.
    3. Is the "good faith" estimate a reasonable offer based upon an appropriate valuation of your property?
      1. Does it include the market value of your property taken?
      2. Does it include the market value of your improvements taken?
      3. Does it include the value of any damages to the remaining property which you are entitled to claim as part of full compensation?
      4. Does your business qualify for business damages under the eminent domain statutes and does the offer include any business damages?
      5. Does it include relocation expenses?
      6. Are there any engineering, drainage, access or other issues that you should be concerned about?
      7. Is it possible to reduce the impact of the taking on your remaining property by modifying your existing site? If it is, the condemning authority should compensate you for those "cure" costs.
    4. Should you proceed with the eminent domain lawsuit?
    5. Please remember, that anything that you say to the condemning authority can be used against you later. You should have an expert handle all negotiations with the condemning authority from the very beginning of the project.
  5. Eminent domain lawsuit [top]
    1. There is nothing to worry about. Being involved in an eminent domain lawsuit is often the best way to receive full compensation for the taking of your property. Remember, the expenses of the lawsuit are typically paid by the condemning authority.
    2. The condemning authority will file a Petition in eminent domain to take your property which is described as a parcel.
    3. You or your attorney will be served with the Petition.
    4. You or your attorney will have specific time limits identified in the Petition to file various responsive pleadings to preserve your right to full compensation. The responsive pleadings are:
      1. the Answer - reserving your rights to full compensation filed 20 - 30 days following service of the Petition.
      2. the Motion to Withdraw Deposit - the condemning authority must deposit the "good faith estimate" with the court before it can take your property. You may withdraw the deposit without forfeiting your right to claim additional compensation if you file this Motion.
      3. the Notice of Hearing on Motion to Withdraw Deposit.
      4. requests for additional information about the project.
  6. Order of taking hearing [top]
    1. This is the method by which a judge will decide if the condemning authority can take your property.
    2. The condemning authority must prove three elements to take your property:
      1. that the proposed project is for a public purpose such as a road right-of-way;
      2. that the taking of your property is necessary to proceed with the project; and
      3. that the deposit offered to you for your property is made in good faith and based upon a valid appraisal of your property.
    3. If the condemning authority proves each of these elements, it can then take your property in exchange for the deposited funds which you may withdraw as soon as the Court releases them. Usually the funds are available to you in 30 - 45 days following the Order of Taking Hearing. Typically, the deposited funds are the same amount as the condemning authority initially offered you to sell your property voluntarily.
  7. Preparation of your case [top]
    1. Once the condemning authority takes your property and pays you the deposit, it is your turn.
    2. You and your experts prepare all the necessary reports, studies and findings and present your claim as a counteroffer to the condemning authority.
    3. Typical reports include:
      1. Real Estate Appraisal;
      2. Business Damage Report; and
      3. Engineering Report/Cure Cost Estimate.
    4. After you have reviewed each of these preliminary reports, the reports are finalized and submitted to the condemning authority as your counteroffer to the initial deposit.
  8. Mediation / Settlement negotiations [top]
    1. Once the condemning authority has had sufficient time to review your counteroffer, the settlement negotiations may begin.
    2. Often, a formal settlement conference, also known as a mediation conference, is held to settle your case. Most cases are settled either during or prior to mediation.
    3. A mediation conference is usually ordered by the Court in an attempt to resolve the case prior to trial. The mediation is held at a neutral site or at one of the participating attorney’s offices. At the mediation, a neutral party generally known as the mediator, who is oftentimes a practicing attorney, tries to facilitate a reasonable settlement between the condemning authority and the property owner. Also present are the property owners, the property owners’ attorney, the condemning authority’s attorney and a representative. Sometimes the experts employed by either side are present to help explain the case.
    4. The mediator cannot force either the condemning authority or the property owner to settle the case.
    5. If the case is not settled at mediation, another mediation may be ordered or the case may proceed to trial.
  9. Trial [top]
    1. An eminent domain trial usually lasts two - five days. It is a twelve person jury trial held in the Circuit Court of the circuit (area) where the property in question is located.
    2. Typically, the parties to the eminent domain action both question perspective jurors and select a jury.
    3. Usually the condemning authority has the greatest burden to prove its case, therefore, it may present its case first. Once the condemning authority’s case is concluded, the property owner may present his case.
    4. The jury will decide the facts (monetary value) of the case and the judge will decide the law (whether or not a claim is appropriate or a witness is credible).
    5. Once the jury deliberates your case and determines the verdict, a final judgment is entered in the sum deemed appropriate. The final award will be available within 30 - 60 days following the trial.
    6. The money which is disbursed to you is yours to be spent in anyway you choose. However, if you decide to appeal the case, you must not withdraw your award from the court.
    7. If you are not satisfied with the verdict and there are some legal grounds which may be further considered, you may appeal the result to the District Appellate Court.
  10. Attorney's fees and expert costs hearing [top]
    1. At the conclusion of your case, the law permits your attorney and your expert witnesses to claim their fees and expenses from the condemning authority.
    2. This is a separate hearing and you usually do not have to attend.
    3. At the hearing, the judge will decide, after hearing from your attorney and your experts, a reasonable fee for each of your experts.
    4. The fee awarded is completely separate from your award and is, typically, awarded to your attorney for disbursement to your expert witnesses.
    5. Once all of the monies are awarded and properly disbursed, your case is closed.
    6. After your case is closed, it is very difficult to reopen an eminent domain case unless highly unusual circumstances occur. Therefore, you must be sure that you are protected throughout your case against the condemning authority.

This information is not intended as a conclusive explanation of the Law of Eminent Domain in Florida. It is to be considered only a summary for clients or prospective clients of this law firm. If you have any questions concerning a specific real estate transaction, you should consult an attorney experienced in the practice of real estate law.

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