...Continued

YOUR CONSTITUTIONAL RIGHT TO BE “MADE WHOLE”
The next step is the valuation trial which occurs if settlement cannot be reached after the court allows the condemning authority to take the property.  The court empanels a jury of twelve persons which hears the owner’s and condemning authority’s case and reaches a verdict as to the amount the owner is to be paid.  This verdict is incorporated in a final judgment ordering payment in the amount of the jury’s verdict.

Florida’s constitution guarantees that before the government can condemn private property the owner must receive full compensation for the taking of his property.  The courts have interpreted the requirement of full compensation to mean that a land owner is entitled to be put in as good a position financially as he would have been if the property had not been taken.

The owners may be compensated for the value of their property actually acquired by the government as of the date of taking.  In addition, where less than the entire property is condemned, any damages to the remainder caused by the taking are included in the compensation awarded.  The phrases “damages to the remainder” and “severance damages” are synonymous.  There are many different examples of severance damages, but typical examples involve the following: (1) the reduced size or altered shape of the remainder; (2) damage resulting from the use to which the condemnor intends to put the property acquired; (3) a change in grade between the part taken and the remainder; and (4) substantial diminution in access as a result of the taking.

Under limited circumstances, Florida law authorizes the payment of business damages.  Generally, the owner of a business is entitled to compensation for damage or destruction of a business established for five years or more resulting from the taking of part of the property by a public body for a right-of-way.  Damages are only compensable where a taking is for a right-of-way as opposed to other takings, i.e., power line easements, etc.  Business damages are not specifically defined or limited and may include such items as lost profits, loss of good will, and costs associated with the moving and selling of personal property.

A claim for business damages applies only where the action is brought by the Department of Transportation, a county, municipality, board, district, or other public body.  For example, electric utility companies are not public bodies and are not liable for business damages.  The property being taken must be for the purposes of a right-of-way, and less than the entire property must be taken.  The taking must be of property being occupied by an established business having a physical existence in continuous operation for more than five (5) years.  The business must be owned by the party whose property is being taken, and the business must be located on adjoining lands also owned by the defendant.

Since Florida law requires the payment of full compensation, the courts have long ruled that owners are entitled to the reimbursement of the reasonable attorneys’ fees and costs.  Costs include such items as appraisers’, engineers’, photographers’, and surveyors’ fees.  Where a claim for business damages has been made, the owners are also entitled to reimbursement for accountants’ fees.

The government is required by statute to notify owners of their right to reimbursement of fees and costs before the filing of an eminent domain petition.  However, it is not uncommon for the government to notify owners just before suit is filed, rather than when they initially advise the owners that their property may be taken.  In this way, the government may often negotiate purchases without any attorney involvement, thereby reducing acquisition costs.

THE TEAM OF EXPERTS AND THE APPRAISAL PROCESS
The appraiser is a critical expert in the proceedings. Your attorneys will assemble a team of the experts necessary to establish the value of the property and the resulting damages. For example, a traffic engineer may be employed to analyze parking losses or changes in traffic flow on a commercial parcel. An economist may be retained to assess damages to a business. As attorneys practicing in the area of the law, we are familiar with the experts that have specialized knowledge in condemnation on matters. The attorneys work closely with the experts to coordinate the legal strategy.

THE APPRAISAL PROCESS
The appraisal of your property is one of the most important aspects in the eminent domain process. Appraisals vary because each property is unique and there are many different factors to be considered. An appraisal is a subjective opinion of value, particularly in eminent domain cases. The appraisal process is influenced by factual assumptions. The appraisal process is influenced by factual assumptions, legal instructions, and the appraiser’s personal opinions based on experience and education.
Because appraising is not an exact science, valuations for a parcel of property can greatly vary.
In eminent domain cases, it is very important for the appraiser working for you to evaluate the appraisal made by the condemnor’s appraiser. Frequently, there are areas of disagreement between the two appraisal amounts (with ours being higher), we will attempt to obtain more compensation for you. If there isn’t a significant difference, and the condemnor’s offer is fair, then at least you are assured that someone representing your interests has been involved in the eminent domain process.