Florida's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Powers?

  Fla. Stat. §73.013 allows the State of Florida, any political subdivision (counties, cities, towns, villages, special tax school districts, special road and bridge districts, etc.), or any other entity to which the power of eminent domain has been delegated, to condemn property for public uses, such as transportation infrastructure or public schools and hospitals.
  
  Florida law does not allow for eminent domain to facilitate private-to-private transfers of property, but Fla. Stat. §§361 does grant the eminent domain power to quasi-public utility providers, some of which are private, for-profit companies. §73.014 prohibits the use of eminent domain to eliminate nuisance, slum or blight conditions formerly available under §163 Community Redevelopment.

• What Are the Legal Requirements for Exercising the Power?

  A condemning authority must have the right to condemn, either granted by statute or delegation from the State, coupled with a valid public purpose before private property can be taken. Florida requires condemning authorities filing under state law to make a good faith effort to acquire the property through negotiating with the owner prior to a lawsuit being filed. The procedures for this presuit good faith negotiation are outlined in Fla. Stat. §73.015. If presuit negotiations are unsuccessful, the condemnor most often initiates a “quick taking” by seeking an order of taking from a judge. Such an order will be granted if the condemnor proves to the judge that the property is reasonably necessary for the completion of the valid public purpose and that the condemning authority has premised a good faith estimate of value on a valid appraisal.
  If an “order of taking” is entered, the condemning authority will also need to make a good faith deposit of funds before acquiring the property. The owner may withdraw these funds without prejudice, proceeding toward a future settlement or jury trial to determine the final amount of compensation owed the owner.
  
  Importantly, once the deposit is made, the title to the parcel taken transfers to the condemnor, meaning that the owner may be forced to vacate themselves or their personal property from the property at that time or soon after. The date of the initial deposit is considered to be the “date of value” for subsequent valuation proceedings.
  
  To learn more about the procedural aspects of eminent domain cases in Florida, look to Fla. Stat. §§ 73 & 74.

• What Limitations or Defenses Exist?

  The condemning authority must show it has a valid public purpose and that certain property is reasonably necessary to achieve that purpose. It is important to ensure the condemnor is only taking what it needs to construct its project, which can include permanent fee takings as well as temporary construction easements (both of which are compensable). A condemning authority is only authorized to take the quantity and quality of estate reasonably needed for its project.
  
  There are various procedural elements that must be met at the order of taking hearing. As an example, a owner could argue that a valid resolution was not attached to the petition as required, or that the condemnor did not properly state the authority under which it is granted the taking power.

• What Constitutes a Public Purpose?

  Public purpose is ultimately a question for the judiciary. However three characteristics are identified by Florida’s eminent domain bar as common to the relevant case law: (1) the property acquired must be available to the public in common; (2) the public interest in the project must predominate over the private gain; and (3) the manner of enjoyment or use of the property acquired must be in the control of the public.
  
  The following are examples of uses that are almost always deemed for public purposes: roads, pedestrian/bicycle ways, rest areas, powerlines and pipelines, drainage systems, water treatment facilities, parks, schools, and hospitals. See Chapter 3, The Public Purpose Doctrine, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

• How is Just Compensation Determined?

  Florida’s Constitution differs from the U.S. Constitution, in that it calls for “full compensation” as opposed to “just compensation.” The “full compensation” standard is more robust than the “just compensation” standard. Fair market value is said to be equivalent to “just compensation;” under Florida law. Fair market value, while a reliable tool of measurement, is not the exclusive measuring stick. The measure of “full compensation” under Florida law is to put the owner back in the same position after the taking as the owner was before the taking in so far as is possible or practicable — to make the owner “whole.” When less than the whole property is taken, the owner is entitled to the value of the land and improvements taken, as well as the severance damages incurred to the remainder property. “Full compensation” has also been determined to include moving costs, interest, attorneys’ fees, and experts’ costs. See Dade County v. Brigham, 47 So.2d 602 (Fla. 1950). Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

• How Is Fair Market Value Defined?

  Fair market value (FMV) is the generally accepted starting point for determining compensation. The Florida Supreme Court has held that FMV is an important but not exclusive element of the compensation formula. FMV is meant to reflect the amount of money that a purchaser willing but not obliged to buy would pay an owner willing but not obliged to sell, taking into consideration all uses to which the property is adapted or might be applied in reason. This may include reasonably probable future changes in zoning. Property is valued at its highest and best use at the time of the taking, meaning the most profitable use to which the property is being put or reasonably might be put. See State Road Dept. v. Stack, 231 So.2d 859 (Fla. 1st DCA 1969). Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

• What About Recovering Damages to Remaining Property?

  Damages to the remaining property in partial takings cases are referred to as “severance damages” and are available to property owners in Florida as long as the damages are suffered as a result of the taking. See Fla. Stat. §73.071.
  
  The amount of such damages are measured by the reduction in value to the remainder property. Typical examples of severance damages include: reduction in size or change in shape of remainder, diminution of access, damages resulting from use of taken property, changes in grade, or loss of aesthetic value. Florida law also recognizes loss in value resulting from market fear or stigma associated with the use to which the condemnor will put the property taken as part of severance damages.
  
  Owners may assume the worst case scenario as related to severance damages, so long as they are supported by the construction plans to which the condemnor is bound, and are not speculative as to the future use of the property. While owners are not required to mitigate damages, “cost to cure” plans which represent the cost of an attempt to ameliorate the damages must be assessed by both parties’ appraisers in valuing the remainder. Under Florida law, not by constitution, but by statute, an owner may be entitled to “business damages” in partial taking cases for the loss of business activities occurring upon the property taken that have been in continuous operation for a period of five years preceding the taking. See also Fla. Stat. §73.071. Business damages are in addition to compensation paid for real estate and are available to those that Florida law defines as “owners” which includes those having a leasehold interest in the property taken. See Broward County v. Patel, 641 So.2d 40 (Fla. 1994); FDOT v. Armadillo Partners, Inc., 849 So. 2d 279 (Fla. 2003). See also Fla. Stat. §73.071. Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Yes, in eminent domain cases. The condemning authority is required to pay attorneys’ fees and reasonable litigation costs, including experts’ fees. This is part of the measure of compensation guaranteed under “full compensation” under Art. 10, Sec. 6 of the Florida Constitution. Attorneys’ fees, in most instances, are “result-oriented” and are measured by a sliding percentage scale based upon both monetary and non-monetary benefits achieved for the owner. See Fla. Stat. §73.092. Importantly, while the fee is determined by the difference between the condemnor’s initial offer and the final award (whether agreed to by settlement or determined by a jury), the fee does not come out of the award to the owner, but is paid in addition to it by the condemnor.
  
  In addition to attorneys’ fees, a condemnor is required to pay for all “reasonable and necessary” costs incurred by the owner in defense of eminent domain. See Fla. Stat. §73.091. Typically, the owner is responsible to pay the costs that are not otherwise reimbursed by the condemning authority. It is important to discuss with counsel at the outset of a case how he or she intends to manage costs and what financial exposure may exist to the owner.
  
  The owner may also be entitled to reimbursement of reasonable attorneys’ fees and costs incurred on appeal if the appeal is taken by the condemning authority or on appeal taken by the owner if the owner prevails. See Fla. Stat. §73.131. See Dade County v. Brigham, 47 So.2d 602 (Fla. 1950). See also Fla. Stat. §73.091; Fla. Stat. §73.092; and Fla. Stat. §73.131.