• Steps To Justice
  • January 3, 2011
  • Law Firm: Blucher Law Group LLC - Sarasota Office
  •  “A Summary of the Eminent Domain Process in Florida




    a. Eminent Domain or Condemnation is the legal process that the government, or an entity with governmental authority, may use to acquire private property for a public purpose.

    b. The power to take private property via eminent domain is inherent in the State and is granted to the federal government, to state agencies, and to municipalities through the Federal and State Constitutions and through various statutes. The Constitutions and statutes limit these powers, as well.

    c. The entity exercising the power of eminent domain is called the “condemning authority” or the “condemnor.” The property sought for condemnation is called a “parcel.”

    d. Typically, all government entities have the authority to take private property by eminent domain. Many quasi-governmental entities and even semi-private entities such as utility companies have powers of eminent domain granted by statute.

    e. The condemning authority is usually represented by one or more attorneys and one or more representatives, an engineering department or consultants, real estate appraisers, planners, accountants, etcetera. A whole team of experts is assembled to design and proceed with the proposed project, which includes the taking of your property.

    f. In an eminent domain case, the property owner is constitutionally entitled to full compensation for the property taken from him and for all damages to his remaining property.

    g. It is essential that the owner knows and understands his rights in the event of an eminent domain case.

    h. Not only property owners but lease owners (tenants) and business owners have rights in eminent domain situations.




    a. The first step is to understand your rights in an eminent domain case. It is imperative to know your rights from the very inception of the project. The only way to learn your rights is to research the law yourself, or to employ experienced legal counsel to help you.

    b. In a typical eminent domain case, your legal fees and costs are paid by the condemning authority as part of full compensation to you, the property owner. In addition, your reasonable expert witnesses’ fees and court costs will be paid by the condemnor.

    c. Therefore, you have nothing to lose and everything to gain by seeking help with your case.

    d. Experts may assist you in negotiating a pre-suit settlement with the condemning authority if possible or, at least, evaluate the initial offer made by the condemning authority for the taking of your property.




    a. You should understand the impact the project will have on your property.

    i. What portion of your property is being taken?

    ii. Why is it being taken?

    iii. What is the purpose of the project?

    iv. How will the project impact your remaining property/business?

    b. Your lawyer and experts will help you understand and answer these questions.

    c. They can also help you evaluate whether or not the project can be modified to lessen or avoid the potential impact to your property. Are there any alternatives to the project that have not been fully considered by the condemnor?




    a. Before suing you to take the property, the condemning authority is required to make a good faith offer for the taking of your property. However, “good faith” does not always mean full compensation. Upon receipt of the offer you may choose to:

    i. donate your property.

    ii. voluntarily sell your property for the offered amount.

    iii. proceed with the eminent domain case and seek additional compensation.

    b. Your lawyer and experts can help you decide the best course of action.

    c. Is the “good faith” estimate a reasonable offer based upon an appropriate valuation of your property?

    i. Does it include the market value of your property taken?

    ii. Does it include the market value of your improvements taken?

    iii. Does it include the value of any damages to the remaining property which you are entitled to claim as part of full compensation?

    iv. Does your business qualify for business damages under the eminent domain statutes and does the offer include any business damages?

    v. Does it include relocation expenses?

    vi. Are there any engineering, drainage, access, parking, buffering, or other issues that you should be concerned about?

    vii. Is it possible to reduce the impact of the taking on your remaining property by modifying your existing site? If it is, the condemning authority should compensate you for those “cure” costs.

    d. Should you proceed with the eminent domain lawsuit?

    e. Please remember that anything that you say to the condemning authority can. You should have an expert attorney handle all negotiations with the condemning authority from the very beginning of the project.




    a. The filing of the suit is nothing to worry about. Being involved in an eminent domain lawsuit is often the best way to receive full compensation for the taking of your property. Remember, the expenses of the lawsuit are typically paid by the condemning authority.

    b. The condemning authority will file a Petition in eminent domain to take your property which is described as a parcel.

    c. You or your attorney will be served with the Petition.

    d. You or your attorney will have specific time limits identified in the Petition to file various responsive pleadings to preserve your right to full compensation. The responsive pleadings are:

    i. the Answer - reserving your rights to full compensation filed 20 - 30 days following service of the Petition.

    ii. the Motion to Withdraw Deposit - the condemning authority must deposit the “good faith estimate” with the court before it can take your property. You may withdraw the deposit without forfeiting your right to claim additional compensation if you file this Motion.

    iii. the Notice of Hearing on Motion to Withdraw Deposit.

    iv. requests for additional information about the project.




    a. This is the method by which a judge will decide if the condemning authority can take your property.

    b. The condemning authority must prove three elements to take your property:

    i. that the proposed project is for a public purpose such as a road right-of-way;

    ii. that the taking of your property is necessary to proceed with the project; and

    iii. that the deposit offered to you for your property is made in good faith and based upon a valid appraisal of your property.

    c. If the condemning authority proves each of these elements, it can then take your property in exchange for the deposited funds which you may withdraw as soon as the Court releases them. Usually the funds are available to you in 30 - 45 days following the Order of Taking Hearing. Typically, the deposited funds are the same amount as the condemning authority initially offered you to sell your property voluntarily.

    d. If you have a mortgage or other liens on your property, they may also have rights to portions of the deposits. Usually the funds with have to be held in an interest bearing trust account until the conclusion of the case when the court will decide the validity of the claims and the amounts payable to the mortgage company and any lien holders.




    a. Once the condemning authority takes your property and pays you the deposit, it is your turn.

    b. You and your experts prepare all the necessary reports, studies and findings and present your claim as a counteroffer to the condemning authority.

    c. Typical reports include:

    i. Real Estate Appraisal;

    ii. Business Damage Report; and

    iii. Engineering Report/Cure Cost Estimate.

    d. After you have reviewed each of these preliminary reports, the reports are finalized and submitted to the condemning authority as your counteroffer to the initial deposit.




    a. Once the condemning authority has had sufficient time to review your counteroffer, the settlement negotiations may begin.

    b. Often, a formal settlement conference, also known as a mediation conference, is held to settle your case. Most cases are settled either during or prior to mediation.

    c. A mediation conference is usually ordered by the Court in an attempt to resolve the case prior to trial. The mediation is held at a neutral site or at one of the participating attorney’s offices. At the mediation, a neutral party known as the mediator, who is oftentimes a practicing eminent domain attorney, tries to facilitate a reasonable settlement between the condemning authority and the property owner. Also present

    are the property owners, the property owners’ attorney, the condemning authority’s attorney and a representative. Sometimes the experts employed by either side are present to help explain the case.

    d. The mediator cannot force either the condemning authority or the property owner to settle the case.

    e. If the case is not settled at mediation, another mediation may be ordered or the case may proceed to trial.


    9. TRIAL


    a. An eminent domain trial usually lasts two to five days. It is a twelve person jury trial held in the Circuit Court of the circuit (area) where the property is located.

    b. Typically, the parties to the eminent domain action both question the prospective jurors and select a jury plus several alternates.

    c. Usually the condemning authority has the greatest burden to prove its case, therefore, it may present its case first. Once the condemning authority’s case is concluded, the property owner may present his case.

    d. The jury will decide the facts of the case (the ultimate monetary value) and the judge will decide the law (whether or not a claim is appropriate or a witness’ testimony is permissible).

    e. Once the jury deliberates your case and determines the verdict, a final judgment is entered in the amount of the verdict. The final award funds will be available within 30 - 60 days following the trial.

    f. The money which is disbursed to you is yours to be spent in any way you choose (subject to claims from mortgages and other liens, however). Note, if you decide to appeal the case, you must not withdraw your award from the court.

    g. If you are not satisfied with the verdict and there are some legal grounds which may be further considered, you may appeal the result to the District Appellate Court.




    a. At the conclusion of your case, the law permits your attorney and your expert witnesses to claim their fees and expenses from the condemning authority.

    b. This is a separate hearing and you usually do not have to attend although your help may be requested.

    c. At the hearing, the judge will decide, after hearing from your attorney and your experts, a reasonable fee for each of your experts.

    d. The fee awarded is completely separate from your award and is, typically, awarded to your attorney for disbursement to your expert witnesses.

    e. Once all of the monies are awarded and properly disbursed, your case is closed.

    f. After your case is closed, it is very difficult to reopen an eminent domain case unless highly unusual circumstances occur. Therefore, you must be sure that you are protected throughout your case against the condemning authority.

    This information is not intended as a conclusive or comprehensive explanation of the Law of Eminent Domain in Florida. It is to be considered only a summary for clients or prospective clients of this law firm. If you have any questions concerning a specific eminent domain case, you should consult an attorney experienced in the practice of eminent domain law.


    Prepared by:


    Paul A. Blucher, Esquire




    7300 Delainey Court

    Sarasota, Florida 34240

    Phone: (941) 361-1145

    Fax: (941) 361-1146