WHAT IS CONDEMENATION?
Eminent domain refers to the power of the government and certain private entities such as railroads and utility companies to take private property for a public purpose.  Florida’s Constitution protects an owner’s private property rights by prohibiting such a taking except when it serves a valid public purpose and upon the payment of full compensation.  Condemnation refers to the procedure by which the power of eminent domain is exercised.

HOW THE CONDEMNATION PROCESS WORKS?
Every condemnation case differs, but typically the process by which a condemning authority takes property involves public meetings to plan the project, notification by the authority of its intent to acquire the property and to begin the appraisal process, receipt of offers to purchase the property and negotiations.  If the owner and the condemning authority cannot agree to a sale of the property, the condemning authority will file a lawsuit to seek the court’s permission to take the property.

The Florida Constitution guarantees that “No private property shall be taken except for a public purpose and with full compensation is therefor paid to each owner.”  The condemnation process is designed to protect the owner’s property rights.  For this reason, a court must decide whether a condemning authority can take an owner’s private property.  By law, a jury of twelve decides how much money the owner is entitled to receive for the taking of his property.

HOW DOES THE GOVERNMENT CONDEMN MY PROPERTY?
Should an owner not wish to sell or feel that the condemning authority’s offer is less than full compensation, the condemning authority must file suit against the owner to take his property.  A condemning authority, like a county, city, and the State, must first obtain a court’s approval before it can take property for a  project that serves a public purpose.  The court assures that the condemning authority cannot take more land than is reasonably necessary to further a valid public purpose.  For instance, a condemning authority could not take an entire piece of property if only a portion would suffice.  The first stage in any condemnation case involves a request made by a condemning authority to a court to allow the authority to take property for a public purpose.

Property can only be taken for a public purpose. The government can initiate a condemnation proceeding in one of two fashions. It can file a “quick take” or a “slow take” petition.
Procedurally, a “quick take” action is commenced by the filing of a petition and the issuance of a summons to show cause. The summons to show cause is the formal judicial document by which the court obtains jurisdiction over the owner and other interested parties, and it will specify a date by which the petition must be answered. It will also specify the date of the hearing during which the government will acquire title to the property — that is, the order of take hearing. Normally, the order of take hearing is scheduled within sixty (60) days of the filing of the petition.

At the order of take hearing, the court will consider the following issues: (1) whether the pleadings are sufficient; (2) whether the acquisition of the property is for a public purpose; (3) whether the property is reasonably necessary to further that public purpose; and (4) whether the government has made a good faith estimate of value of the property it seeks to acquire based upon a valid appraisal.

In a limited number of cases, it may be that the government is exceeding its authority to take property.  In those cases, it may be in the client’s best interest to try to stop the taking.  The attorneys at Wilson, Garber & Small have successfully defeated illegal takings.
If the court finds the appraisal invalid either because it is based upon an erroneous assumption of law or fact, the appraisal may be stricken, and the government will have to reappraise the property before it obtains an order of taking.

In the event that the court does enter an order of taking, it will direct the government to deposit into the registry of the court within twenty (20) days of the date of the order of taking its initial good faith estimate of value.  The date of the deposit fixes the date that title to the property will pass to the government and fixes the date of valuation for the purposes of a subsequent eminent domain trial.  The good faith estimate of value is made available for the owner to withdraw, subject to the claims of any interested parties such as mortgagees, tenants, and the tax collector.

The owners are entitled to withdraw the good faith estimate of value during the pendency of the lawsuit.  The withdrawal is without prejudice to the owners’ right to contest value, and no mention of the withdrawal can be made by either party at the jury stage.

The government also has the option of proceeding under the “slow take” process.  In a slow take condemnation, the jury will enter a verdict for full compensation, and the government has the option to abandon the action after an unfavorable jury verdict.  Since a quick take condemnation establishes the date of valuation during periods of rising property values, the government can acquire title to property even though the project may not be constructed until some time in the future.  Once title has passed under a quick taking, however, the government loses the right to dismiss the action without the consent of the owner.

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