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Know the Facts

To help you understand the basic information about Eminent Domain law, we’ve compiled a list of frequently asked questions. Remember that sometimes the smallest pieces of land taken can have the largest impact to your business or residence.

Who is affected by eminent domain?

Business owners, landowners and lessees are the primary persons or entities who are affected by the power of the state, county, city or federal government (“Condemning Authority”) to take private property for public use.

How is the value of the property taken determined?

The owner of the land must be paid full compensation. Full compensation includes the value of the property taken and damages to the remainder property. Included in full compensation is “fair market value” — the price a seller and a buyer, both willing, but not compelled to sell or buy the property, would agree upon in fair negotiations with full knowledge of relevant facts.

What factors apply to “fair market value?”

To determine a property’s “fair market value” the highest and best use of the property and the proper selection of comparable sales by the owner’s appraiser are the most important factors.

How does the Condemning Authority take action on the property?

Once acquisition of all or a portion of the landowner’s property is determined, the Condemning Authority files a Petition in Condemnation. The Petition states the legal description of the property taken, identifies the owner of the property and others who may have an interest such as mortgage holders and tenants, and the public use, which requires the taking.

Can landowners challenge the Petition?

Within 20 days after being served with a Petition in Condemnation and prior to an Order of Taking hearing, land and business owners must file an Answer or Response. In this pleading, owners may object to the necessity of the taking, which requires the Condemning Authority to present evidence that the taking of the land is necessary for public use and to present evidence of the good faith value of the land taken. A judge will decide if the Condemning Authority has met this burden of proof.

What happens if the judge grants the Petition?

Most often, a judge will rule in favor of the Condemning Authority, and enter an Order of Taking. Within 20 days from this date, the Condemning Authority is required to deposit its “good faith estimate” into the registry of the Court, which is its opinion of the full compensation landowners should receive. Upon the deposit of these funds into the registry of the Court, by operation of law the Condemning Authority becomes the owner of the property taken. If the landowner or tenant needs to retain possession of the property to facilitate relocation to a new site, owners and tenants may be allowed to do so upon proper application to the court.

Do landowners have to accept the “good faith estimate?”

You do not have to accept the valuation made by the Condemning Authority, but you may withdraw from the registry of the Court the “good faith estimate” deposited by it. After satisfying any valid encumbrances on the property, you are entitled to the funds. After acceptance of the “good faith estimate,” you may contest the Condemning Authority’s valuation of your property.

Who pays the fees and costs for eminent domain legal action?

Attorney’s fees, expert fees and costs are paid by the Condemning Authority pursuant to Section 73.092, Florida Statutes, which states:

“…the Petitioner (Condemning Authority) shall pay all reasonable costs of the proceedings in the circuit court, including, but not limited to, reasonable attorney’s fees, reasonable appraisal fees,  and, when business damages are compensable, a reasonable accountant’s fee, to be assessed by the court.”