With an improved economy and resultant tax revenue, local and state governments have increased their budgets for transportation. For example, Florida’s proposed state budget included $4.1 billion for road construction projects while Hillsborough County recently approved a $700 million transportation plan.

The Fifth Amendment of the U.S. Constitution prohibits any government from taking private property without payment of just compensation to the owner. In Florida, a state highly protective of property rights, there is a greater obligation imposed to ensure owners are properly compensated. Specifically, Article X, Section 6(a) of the Florida Constitution states that

No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.

Full compensation includes payment of the owner’s attorney’s fees and reasonable costs incurred to defend the claim which can include numerous experts such as appraisers, engineers, accountants, local planners, contractors, surveyors, market experts, architects, and a multitude of other disciplines depending on the issues and complexity involved in the valuation process.

Florida is also one of the few states that provides for damages for business loss under certain conditions. These conditions include that the entire parcel and business located wherein is not condemned, and that the business has been established for a minimum of five years prior to the date of taking. Notably, payment of business damages is not automatic and is a matter of legislative grace, with the burden being on the business owner to demonstrate compliance with the statutory requirements and to properly demonstrate and quantify the loss.

In Florida, the government has a very low burden to meet in order to acquire private property, so attempting to stop a taking is not generally a viable alternative. Therefore, an owner or tenant should strategically position themselves with a view toward maximizing compensation to be paid by the condemning authority.

Some of these considerations may include:

• Preparing and filing public records requests to obtain all of the information the government has prepared relating to acquiring your property prior to an eminent domain lawsuit being filed. This would provide insight as to the government’s actual perceived value and any damages to your remainder property.
• Resolving ownership or landlord/tenant issues relating to entitlement to compensation and how a claim will be generated and defended.
• Giving careful consideration to any valuation or listing price for your property which may contradict your ultimate opinion of value during settlement negotiations or trial.
• Making sure that proper permits and licenses are in effect and current because if not, the government may use these deficiencies to dispute or reduce your claim.
• Making sure proper leases are in effect with sufficient clear rental periods and options to renew as business damage claims under Florida law are generally restricted to future ability to conduct business on the remainder property.
• Consider obtaining comprehensive land use plan changes or zoning changes if they appear reasonably probable.
• Consider whether maintained rights of way affect your property and whether they have been properly established by the government claiming ownership of the roadway.
• Consider subdividing or merging your property, including changing ownership to enhance unit value and/or establish severance damages.
• Advising employees or tenants not to discuss matters relating to the property or possible relocation alternatives to government representatives.
• Do not rely on any technical expert to properly represent you in the legal process or negotiations.
• Do not hire a particular lawyer just because an expert, appraiser or planner for example, recommended them. You need to interview attorneys and discuss their approach and obtain references.
• Finally, be realistic. The point is not to negotiate from the highest number an aggressive appraiser can support, but to have a realistic number that can be defended at trial if negotiations fail.
• Remember agencies like the Florida Department of Transportation acquire property on a routine basis with precision-like expertise, so they know when you do or don’t have a legitimate claim.

Mark Bentley has been certified as an expert counsel in City, County and Local Government Law by The Florida Bar, and certified as an expert planner by the American Institute of Certified Planners (AICP) of the American Planning Association.