211 South Gadsden Street | Tallahassee, Florida 32301
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Frequently Asked Questions

What is eminent domain – condemnation?
Eminent domain – condemnation is the process used by condemning authorities (entities that have the power to take private property, for example, governments and utility companies) to acquire private property for a “public purpose”.  You may obtain available information about how the eminent domain process may impact your property by contacting our Firm Administrator by email at sharris@fixelwillis.com or by telephone toll free at (800) 848-7535.
When is the eminent domain – condemnation process going to begin for my property?

The estimated time for a condemning authority to begin the eminent domain process will vary according to circumstances.

Indeed, every infrastructure project has three phases:  (1) planning and design; (2) right of way acquisition; and (3) project construction.  The timing of the second of these three phases is what will determine when the eminent domain – condemnation process will occur for the project affecting your property, and it is dependent on many factors, including when funding for right of way is scheduled to be spent.

If you have questions about the timing of a project that affects your property, please contact our Firm Administrator by email at sharris@fixelwillis.com or by telephone toll free at (800) 848-7535.  Fixel & Willis will be happy to schedule a conference with you to discuss any and all currently available information.

What are my rights?

You have a right to be paid full compensation for property acquired and for certain negative impacts to your remaining property.  To ensure this right is protected, you have the right to have an independent appraisal prepared for you by an experienced eminent domain appraiser at no cost to you.

To assist your appraiser in ensuring that all negative impacts to your property are properly taken into account, you have the right to have an experienced site analyst carefully evaluate — at no cost to you — the condemning authority’s construction plans and the accompanying consequences to your remaining property.

Florida law obligates the condemning authority to be responsible for court determined fees for a law firm like Fixel & Willis to help you with your real estate claims.

If a business is located on the affected property, you may also have a business damages claim.  Business damage claims can include actual and/or anticipated lost profits and lost goodwill suffered by an operating business as a result of a government taking of private property.  Additionally a claim for trade fixtures can frequently be made as a part of a business damages claim (or separately, if need be). For more detail regarding all aspects of eminent domain compensation, please see below Question & Answer “In Florida, what constitutes Eminent Domain Compensation?”.

What are my risks?

While the condemning authority will have skilled acquisition agents, attorneys, and appraisers working for it, Florida law does not require the condemning authority to fully inform you of the risks associated with being the target of condemnation, and the condemning authority rarely attempts to do so.

The condemning authority’s focus is generally on designing its project to serve its purpose, not on identifying, disclosing, and fully accounting for the project’s negative impacts to your remaining property or business. This creates significant risks for you, the property owner or affected business, because these impacts can be serious, permanent, and not apparent until the project is complete.

A few examples of these unapparent negative impacts include unfavorable drainage consequences, driveway connection problems, and detrimental road elevation changes.

In addition, the condemning authority may not fairly appraise what you should be paid for the property it seeks to acquire from you.  Without an experienced eminent domain team, like the ones led by Fixel & Willis, working on your behalf, you may not be paid fairly for the property acquired, and the condemning authority may never pay for, or even address, certain negative impacts to remainder property.

When should I retain Fixel & Willis?

The sooner, the better. Fixel & Willis will closely monitor the condemning authority’s plans and will keep you fully informed as those plans evolve and related activities occur which may affect your property. In addition, there are beneficial pre-condemnation planning steps that can be taken when the condemning authority’s initial design activities become known.

Just a few examples of Fixel & Willis’s recommended pre-condemnation planning include:

  • Carefully limiting communications with representatives and appraisers of the condemning authority who later may not accurately recall what has been communicated or who may improperly use such communications;

  • Avoiding confrontations with the local property tax assessor since a property owner’s position that property is assessed at too high a value can undermine the credibility of the property owner’s eminent domain appraiser;

  • Applying for and securing rezoning, plat approval or a building permit, if possible and it is anticipated the condemning authority might contend that these types of development authorizations are not obtainable;

  • Avoiding having the threat of condemnation lead to listing a property or business for sale at a price less than its real value;

  • Including equitable and adequate language in any option or sales agreement to ensure the intent of the buyer and seller regarding how to handle condemnation proceeds is enforceable whether or not transfer of title occurs before the eminent domain process is concluded;

  • Correcting the unintentional or unnecessary holding of contiguous parcels in different corporate or family names which if not corrected, may result in the condemning authority improperly appraising the taking and damages to remaining property;

  • Negotiating appropriate “condemnation clauses” in leases to clearly outline the landlord’s share of condemnation proceeds versus the tenant’s share;

  • Ensuring that leases reflect the intent of all concerned regarding how long the business tenant has a right to occupy the site; and

  • Extending lease terms to provide owners rental income by giving tenants an incentive to “stay in place” after tenants learn of the threat of condemnation and where practicable during the condemning authority’s construction period even though traffic counts are anticipated to be reduced.

What experience does Fixel & Willis have helping people who have faced the eminent domain process?
For many years, Fixel & Willis has essentially limited its practice to solely eminent domain – condemnation.  It is one of only a few law firms in Florida to do so.

The attorneys of Fixel & Willis have handled over 2,800 eminent domain claims of all types for property owners and businesses throughout Florida.

For more detailed information about our firm’s eminent domain results and the kinds of properties it has handled, please see the Firm’s Track Record.
What will it cost for Fixel & Willis to be my lawyers?

Florida law obligates condemning authorities to be responsible for a court determined amount of attorney fees which Fixel & Willis will accept as full payment for representing its clients to secure their compensation for property acquired and damages to remaining property.  Clients with these real estate claims will not receive a bill and will not be responsible for paying Fixel & Willis for pursuing these claims.

This policy of Fixel & Willis is based on Florida constitutional law which recognizes that full compensation received by those property owners subject to the eminent domain process should not be diminished as a result of property owners having to pay attorneys’ and experts’ fees and costs. In contrast, because the Florida constitution does not recognize business damages as part of full compensation, condemning authorities are not responsible in some circumstances for sufficiently paying Fixel and Willis for legal services directed to adequately prepare and timely submit business damage claims.  In those circumstances, given the anticipated complexity and significant time necessary to prepare a compelling business claim, the business may be responsible for paying Fixel & Willis no more than a ten to fifteen percent portion of only its business damage recovery, with the understanding that there will be no fee if no business damage recovery occurs. Again, as to real estate claims, clients of Fixel & Willis will not be responsible for paying Fixel & Willis anything.

How reliable is the information provided to me by the condemning authority?

Florida law does not obligate condemning authorities to fully inform property owners of the risks associated with being the target of condemnation, and condemning authorities rarely even attempt to do so.

If you have been provided information by a condemning authority, it may not be reliable.  Fixel & Willis is ready, willing, and able to assist you to determine whether the information you received is accurate and trustworthy. A conference with a Fixel & Willis attorney can be arranged on relatively short notice by emailing our Firm Administrator at sharris@fixelwillis.com or by calling our office toll free at (800) 848-7535.

Can I prevent the taking of my property?
Sometimes, it is possible to prevent the condemning authority from taking property.  When that is not possible or wanted by the property owner, the most desirable result and the most feasible thing to do is to secure all of the compensation you are entitled to by law.
In Florida, what constitutes eminent domain compensation?
Florida eminent domain compensation consists of:

I. The value of the property physically taken, including: (1) land; (2) buildings; (3) landscaping; (4) driveway/pavement improvements; (5) drainage facilities; (6) fixtures put in place by the property owner (compensation for these fixtures almost always should be provided to the property owner); (7) trade fixtures (compensation for trade fixtures usually should be provided to the business operator); (8) monument signage; and (9) fencing; (10) any other improvements.

II. The lost value to remaining property which results from the condemning authority’s project negatively impacting: (1) access; (2) landscape amenities; (3) drainage from the remaining property; (4) drainage onto the remaining property; (5) parking; (6) shape of the remaining property; (7) depth of the remaining property; (8) orientation of remaining buildings relative to surrounding properties and roadways; (9) required setbacks; (10) required landscape buffers; (11) visibility; (12) grades and slopes; (13) septic and sewage systems; (14) development/capacity of the remaining property; and (15) other uses of the remaining property.

III. Business damages when the following criteria are met: (1) where an established business has been in place for at least five years; (2) where there is a partial – as opposed to a whole – taking; (3) where the damage is a direct result of the loss of use of land physically taken and part of the business operation is located on what remains; (4) where the taking is for right-of-way and is by a Florida public entity (e.g., the Florida Department of Transportation, a county, or a city); and (5) where certain procedural requirements are timely met in terms of preparing and submitting the business damages claim and supportive documentation.

Business owners with business damage claims should also be aware that they can only be paid business damages for the length of time that the business owner has a legal right to remain on the property after the taking.

IV. Moving expenses in certain circumstances, usually when the taking is by a state agency (e.g., Florida Department of Transportation).

V. Attorneys’ and costs: for an explanation of how attorneys’ fees and costs are paid in Florida eminent domain cases, please see see above Question and Answer “What will it cost me for Fixel & Willis to be my lawyers?”
Once I’m convinced that I have been offered fair market value, is that all the information I need before I settle with the condemning authority?

No.  To have complete assurance that the settlement is fair, you need to obtain an independent appraisal of the value of the property taken, an analysis of the negative impacts and related loss of value to any remaining property, and if applicable a full assessment of any potential business damages claim.

Assessing and providing all of this information is one way Fixel & Willis, together with its team of experienced eminent domain professionals, can assist you before settlement is finalized.  Fixel & Willis will work with its team of experienced professionals to evaluate the issues in your matter objectively, fairly, and from your perspective.

When the condemning authority makes its offer to a property owner, does it have to account for all of the project’s negative impacts to the remaining property?

No, it does not.  Florida law requires the condemning authority to be responsible for paying for negative impacts to your remaining property, but it does not obligate the condemning authority to account for these impacts when it makes its settlement offer to you.  Ensuring that the condemning authority pays for all of these negative impacts is one way Fixel & Willis can assist you.

An example of how the condemning authority may attempt to avoid paying for negative impacts to remainder property follows.

The condemning authority likely will not fully evaluate the detrimental access, drainage, elevation, and other impacts to your remainder site resulting from the condemning authority’s planned project.  Even when this information is made available to the condemning authority’s appraiser, there is no obligation that it is properly taken into account before settlement offers are tendered to you.

This can result in the condemning authority, through its skilled right-of-way agent, convincing you to settle (via a  “deed for money” contract) without having to fully pay for these negative impacts to your remaining property.

How can this happen?  Because you may not know of all of these impacts until after you settle all of your claims, and your settlement did not reserve any enforceable future rights.

When the detrimental consequences later surface, the condemning authority will refuse to pay any compensation for these damages and avoid all responsibility by claiming that the earlier settlement was comprehensive and complete.  If hired, Fixel & Willis attorneys, together with its team of experienced eminent domain professionals, will assist you in avoiding this result.

When will I receive my full compensation?

It depends.  If Fixel & Willis assists you in settling all issues before the condemning authority files an eminent domain lawsuit, the money will be distributed for your benefit shortly thereafter.

If you do not authorize Fixel & Willis to settle your claims before suit is filed, an order of taking hearing usually occurs within four to ten weeks of the lawsuit being filed.  The purpose of the order of taking hearing is to provide a legal means for the condemning authority to force the conveyance of the property it desires from you without resolving the question of what you are entitled to be paid as full compensation.

At the order of taking hearing, it is likely that the judge will enter an order of taking that directs the condemning authority within 20 days to deposit in the court registry what the condemning authority represents should be full compensation. Though not always, this is usually equal to the amount of money initially offered to you by the condemning authority.  This amount does not include any compensation for business damages, if those damages apply.  The property subject to the order of taking is conveyed to the condemning authority by operation of law upon the timely deposit of money into the court registry.

At the order of taking hearing, Fixel & Willis normally requests that the judge allow Fixel & Willis to withdraw the initially deposited funds for the property owner’s benefit once that money has been deposited.  Withdrawing this money does not waive any rights to seek additional compensation.

Whether your claims have been settled before or after the condemning authority files its lawsuit, if your property is subject to a mortgage withdrawing these funds may mean crediting the mortgage account and paying a portion or all of the proceeds to the mortgage holder.  This happens when language in the applicable mortgage or fairness demands that the mortgage be credited and a waiver from the mortgage holder cannot be secured.

Similarly, if there is a lien or judgment, pro rata real estate taxes are due, or an outstanding tax certificate exists, you may not receive all or any of the disbursed funds, depending on the circumstances.  If not provided directly to you, the funds will be credited against the outstanding balance you owe.

Securing initial deposited funds for your benefit does not jeopardize your right to seek more money for the final settlement.  Once they have been secured, Fixel & Willis will continue to seek these additional funds through the eminent domain litigation process.  This process will end either with a subsequent settlement or a jury trial.

Please note that the law does not require the condemning authority to deposit any initial monies for business damage claims.  It is possible, however, that there may be a deposit for trade fixtures owned by a business.  If this occurs, Fixel & Willis will seek to secure these funds for the benefit of the business owner who is a client in a similar manner as previously described for property claims.

How likely is settlement?
Fixel & Willis is ready, willing and able to take any case to trial.  The significant majority of property owner and business clients, however, believe a negotiated settlement is a prudent route to ensure proper compensation.  As a result, many of Fixel & Willis’s claims are resolved by client directed and fully approved settlements.
Do I have to be present in court?

If your claims are not settled before the condemning authority files an eminent domain lawsuit, court proceedings will occur.

You do not have to be present in court for these proceedings, but if you desire to attend them, Fixel & Willis will encourage you to do so.  Regardless of whether you are present, if retained, Fixel & Willis attorneys will always appear on your behalf when these proceedings occur.

Do I have any rights if a condemning authority uses my property without initiating the condemnation process?
Yes, this is called your right of inverse condemnation.
How is an inverse condemnation claim different from other eminent domain claims?
An inverse condemnation claim arises when a condemning authority is using a property owner’s real estate or is substantially interfering with the owner’s use of his or her property, but the condemning authority doesn’t acknowledge that it is responsible to pay compensation for its actions. Examples of this may include where a government entity changes the drainage pattern or builds a drainage structure that redirects storm water resulting in flooding property that did not previously flood, thereby interfering with the owner’s use of portions of his or her property. Another example might be where a government entity occupies property not owned by that government entity.
Is the condemning authority responsible for paying my attorneys’ fees and costs of an inverse condemnation lawsuit?
If it can be determined by a court that the condemning authority did in fact sufficiently occupy your property or substantially interfere with your protected property rights and you have taken legal action in a timely manner, you will have the right to have the condemning authority not only compensate you, but also pay your reasonably incurred litigation fees and costs.

Successful inverse condemnation claims usually involve a two step process.  The first step is proving in a timely manner to a judge that the condemning authority’ s actions constitute a “taking” of real estate or a substantial property right (e.g. an essential driveway connection) associated with your real estate. If you fail to prove this, then your inverse condemnation claim will have been unsuccessful and the condemning authority will not be responsible for your litigation fees and costs. However if you win the first step, the claim will proceed just as if the condemning authority had acknowledged its responsibility to pay you compensation and had initiated the eminent domain condemnation process, and you can recover your reasonably incurred fees and costs from the condemning authority.

Inverse condemnation claims are complex and present risks to the property owner. It is important to have an attorney who is experienced in eminent domain law evaluate your specific situation and advise you of your rights so that the determination to initiate an inverse condemnation claim is based on an informed decision. The lawyers of Fixel & Willis are qualified to provide such advice and will meet with you to discuss your situation at no charge.

Due to the risks associated with potentially losing at the first step of establishing a “taking” or liability, Fixel & Willis usually cannot offer to handle such inverse claims without charging for its services. However, if you decide to retain Fixel & Willis, it will work with you to try and reach a mutually acceptable fee agreement. Again, initial consultation for such matters will be at no charge to you.