Understanding Eminent Domain: Your Rights as a Property Owner

As a property owner in Florida, you have clear legal rights. However, your rights are not absolute. In certain circumstances, government agencies can take ownership of your property through their power of eminent domain.

Not only that, but in some cases government agencies can also use their power of eminent domain to secure property for other private parties. These “private takings” can be authorized if the exercise of eminent domain serves a public interest, such as facilitating a large-scale utility development project or opening up the property to public use. However, government agencies can—and do—overreach, so ensuring that you have a thorough understanding of your legal rights is critical.

Eminent Domain and Private Property Owners’ Legal Rights in Florida

Let’s say you have received a notice of eminent domain. What do you need to know? What are your legal rights in this scenario, and what steps can (and should) you take to try to protect your property?

A Brief Introduction to the Law of Eminent Domain

Eminent domain, or the taking of private property for public use, is authorized under both the U.S. Constitution and the Florida Constitution. Both of these sources of legal authority allow for the exercise of eminent domain—provided that property owners receive “just compensation” for the taking of their property.

However, government agencies cannot simply decide to take your property. To exercise their power of eminent domain, they must have a valid (and constitutional) purpose. Generally speaking, this purpose must be to serve the greater public good. This is true whether a government agency is exercising its power of eminent domain directly or authorizing a private taking. As the Florida Department of Environmental Protection (DEP) explains with regard to utility development projects:

“Eminent domain is the power of the state to take private property for public use with compensation to the owner. This power, given to electric utilities by the state of Florida, authorizes a utility to acquire a right-of-way even though the owner does not want to sell. . . . The eminent domain process is governed by procedures set forth in Chapters 73 and 74, Florida Statutes, and includes the right of the landowner to be represented by counsel in an appropriate proceeding.”

This highlights a few key aspects of the eminent domain process in Florida:

1. “The Power of the State to Take Private Property for Public Use”

We’ve discussed this already, but it is a key aspect of eminent domain law, so it bears repeating: To exercise the power of eminent domain (or delegate this power to a private company), the government must do so for a public purpose, or for “public use.” If the intended use of your property is not sufficiently “public” in nature, this can serve as a defense to the exercise of eminent domain.

2. “With Compensation to the Owner”

Even when exercising its power of eminent domain, the government cannot simply take your property. Instead, it must purchase your property for just compensation. You have the right to play a role in determining what constitutes “just compensation” for your property; and, if the government (or a private company) refuses to pay just compensation, this can serve as a defense to the exercise of eminent domain as well.

3. “Governed By the Procedures Set Forth in Chapters 73 and 74”

Since the exercise of eminent domain involves taking private owners’ property without their consent, it is subject to strict rules and procedures. In eminent domain cases pursued under state law, these rules and procedures are outlined in Chapters 73 and 74 of the Florida Statutes. For example, Section 73.015(1) states:

“Before an eminent domain proceeding is brought under this chapter or chapter 74, the condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired, must provide the fee owner with a written offer and, if requested, a copy of the appraisal upon which the offer is based, and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.”

Entities seeking to exercise the power of eminent domain must provide various other written notifications as well. Additionally, as noted by the Florida DEP, property owners who are facing the exercise of eminent domain have the right to legal representation; and, under Chapter 73, they also have the right to have their relevant attorneys’ fees paid by the party seeking to condemn their property. As stated in Section 73.015(4)(d), “If the parties cannot agree on the amount of costs and attorney’s fees to be paid by the condemning authority, the . . . property owner may file a complaint in the circuit court in the county in which the property is located to recover attorney’s fees and costs.”

What Can (and Should) You Do if You Receive an Eminent Domain Notice?

With all of this in mind, what can (and should) you do if you receive an eminent domain notice in Florida? To protect your legal rights, you should speak with an attorney as soon as possible. Among other things, a Florida real estate attorney who has experience handling eminent domain cases will be able to:

• Review your eminent domain notice and identify any issues or deficiencies;
• Determine if you have statutory or constitutional grounds to challenge the exercise of eminent domain;
• If you cannot challenge the exercise of eminent domain, assist with obtaining an appropriate valuation of your property and negotiating the sale price;
• Represent you in court as necessary, including to challenge the exercise of eminent domain or ensure that the government pays your attorney’s fees; and,
• Assist with your next steps, whether these involve filing an appeal or using the funds you received through the eminent domain process to purchase a new property.

Speak with a Florida Real Estate Lawyer at Douglas Law Firm

If you have received an eminent domain notice in Florida, we strongly encourage you to contact us for more information. To schedule a free, no-obligation consultation, give us a call at 800-705-5457 or tell us how we can help online today.