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EMINENT
DOMAIN PROCESS
An estimated time schedule with
respect to the eminent domain process varies according to circumstances. Fixel, Maguire & Willis ensures to the extent possible that timing of events are scheduled
for its clients’ benefit, not for the condemning authority’s benefit or
for Fixel, Maguire & Willis’s benefit. What follows is the usual order of how
things unfold during the eminent domain process:
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The first
notification that a property may be needed for a planned roadway or
other public project usually occurs when the property owner reads about it
in the newspaper, learns of it from a neighbor, or receives a notice of a
public hearing. Whatever way the property owner first learns that his/her
property is targeted for possible acquisition, the sooner Fixel, Maguire & Willis is retained, the better because oftentimes there are many very
beneficial pre-condemnation planning steps which can be taken when the
condemning authority's initial activities first become known.
These planning services as well as all other services to property
owners relating to pursuing and securing property claims during the eminent
domain process are provided by Fixel, Maguire & Willis consistent with what is
set forth in Responsibility
for Fees.
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As soon as Fixel, Maguire & Willis is retained, it will begin to assist its clients regarding important
pre-condemnation planning considerations. Just
a few examples of what can be done in terms of pre-condemnation planning
include:
- Carefully limiting communications with
representatives and appraisers of the condemning authority who in the future
may not accurately recall what has been communicated or who in the past has
shown a pattern of improperly using 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 ultimately undermine the credibility of the
property owner's eminent domain appraiser;
- Applying for and securing rezoning, plat
approval or a building permit (assuming the risk of denial is low) if it is
anticipated the condemning authority might later contend that these types of
development authorizations may not be obtainable;
- Avoiding having the threat of
condemnation lead to listing a property or business for sale at a price
substantially less than its real value, because to do so will undermine the
credibility of the owner's eminent domain appraiser;
- 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 names or in
different family names which if not corrected may result in the condemning
authority mistakenly appraising the taking and damages to improperly defined
remaining property;
- Negotiating appropriate
"condemnation clauses" in leases clearly outlining the landlord's
share versus the tenant's share of whatever proceeds are ultimately paid for
the property targeted to be acquired and loss in value of the remaining
property;
- Amending leases to reflect the intent of
all concerned regarding how long the business tenant has a right to occupy
the site. (The importance of this is addressed in Section III of Compensation
Elements); and
- Extending lease terms to provide owners
rental income during the anticipated construction period by giving tenants
an incentive to "stay in place" even though traffic counts are
anticipated to be dramatically reduced.
-
The public hearing or
hearings occur early in the eminent domain process. The public
hearings are often perfunctory matters only held by the condemning authority
because the law requires it to do so. These usually occur after the
condemning authority has, in reality, already determined its choice of the
location for the project.
-
After the public hearings are
concluded, the property owner is notified by the
condemning authority that it intends to appraise the owner’s property
sought to be acquired and that the property owner will be invited to enter
into negotiations. At this point, sometimes the property owner is advised of his/her rights
to retain an attorney and appraiser, but rarely encouraged to do so by the
condemning authority. Occasionally, the property owner is improperly
discouraged from retaining his/her own legal counsel and/or other eminent
domain experts.
-
Next the condemning
authority's appraisal is prepared by its appraiser. After the
condemning authority's appraisal is finished and approved by it, the
condemning authority makes its initial offer to the
property owner.
-
When the condemning authority
is prepared to make its initial offer in writing to ensure that it is valid,
the condemning authority is obligated to notify the property owner of the
property owner's rights. However, there is no obligation on the
part of the condemning authority to ever inform the property owner of the
property owner's risks associated with being the target of condemnation,
and the condemning authority rarely even attempts to do so.
-
It is not unusual at this
point for the condemning authority's acquisition agent to improperly
discourage the property owner from retaining his/her own legal and/or other
eminent domain experts (e.g. an independent appraiser). Fixel, Maguire & Willis's recommended response to any and all verbal offers is to request
that the condemning authority's offers be put in writing to ensure their
validity, since Florida law is clear that only written offers for real
property are enforceable.
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Fixel, Maguire & Willis’s first
response to the initial offer tendered by the condemning authority is to ask
for a reasonable amount of time to put it and its team of eminent domain
professionals in a position to help the property owner make a fully informed
decision as to whether to accept the offer, make an appropriate
counteroffer, or contest the efforts to acquire the property. Informed
decision-making regarding an appropriate response to an initial offer is
usually dependent upon the availability of reliable appraisal information
and a reasonably complete set of three dimensional construction plans
which Fixel, Maguire & Willis will request from the condemning authority if such
has not already been made available. Oftentimes, complete plans are not
provided because they have not been finished. Even when plans are completed
and available when the condemning authority makes its initial offer, all of
the negative consequences of those plans to remaining property may very well
have not been adequately taken into account by the condemning authority's
appraiser.
-
Securing a reasonably
complete set of three dimensional construction plans is necessary to
evaluate any potential negative impacts that the project, when built, may
cause to the remaining property. For example, restricting or eliminating
driveway connections, negative drainage consequences, and grade changes are
often the results of projects which are first discovered once they are
built.
-
Whether or not there will be
any remaining property, an evaluation of reasonably complete construction
plans is also usually required to determine the reasonableness of
the condemning authority's intentions to take what it says it needs
(which in most instances is only part of the property, but occasionally can
be all of the property leaving no remainder).
-
As soon as reliable appraisal
information and reasonably complete construction plans are made available,
then the evaluation of the merits of the condemning authority’s initial
offer and negotiations begin in earnest by Fixel and Maguire working
closely with its team of condemnation experts (e.g. eminent domain engineer,
appraiser, etc.) and the property owner.
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If the matter
is not settled in a way acceptable to the property owner at this stage, the
condemning authority has the option to, and usually will, file an eminent
domain lawsuit. Such a lawsuit is one of only a very few types of
lawsuits that are allowed to be filed without any claim by the one suing of
wrongdoing on the part of the one being sued. The one being sued will be the
property owner whose property is sought, but who has not been convinced to
sell at the price offered and to waive all future claims of damages to the
owner’s remaining property. Given the absence of the lawsuit claiming any
wrongdoing on the part of the property owner, the nature of the litigation
which follows is oftentimes less stressful than most other lawsuits.
-
The eminent domain lawsuit
can be filed by the condemning authority before the condemning authority has
provided reasonably complete construction plans information to its own
appraiser or to the property owner. In such situations, an informed
evaluation of the merits of the condemning authority’s pending offer is
obviously very difficult, if not impossible.
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Within four to ten
weeks of the lawsuit being filed, an order of taking hearing usually
occurs. Unless Fixel, Maguire & Willis is directed by its client to attempt to
prevent the taking and it is successful in that endeavor, at the order of
taking hearing the judge will enter an order transferring ownership of the
property sought to be acquired.
-
At the order of taking
hearing the judge will provide as a condition to the order of taking that
within 20 days the condemning authority must deposit in the court
registry an amount of money equal to its own unilaterally determined
estimate of full compensation. This does not include anything for business
damages, even if they apply. But it is usually equal to or greater
than the amount initially offered to the property owner.
-
At the order of taking
hearing Fixel, Maguire & Willis normally asks the judge to consider its request
to withdraw the funds anticipated to be deposited by the condemning
authority into the court registry for the property owner's benefit.
Again, this amount of funds is usually equal to that amount initially
offered to the property owner. Withdrawing this money for the benefit of the
owner does not waive any rights to seek additional compensation.
-
These initial funds due
the property owner are normally secured for his/her benefit within a
short period of time of the order of taking hearing. This sometimes may mean
crediting the property owner's mortgage account and paying over a portion or
all of the proceeds to the property owner's mortgage holder if there is one.
This happens when language in the mortgage or fairness demands that this
occurs and the property owner has not secured a waiver from the mortgage
holder. Also, if there is a lien, judgment, or pro rata real estate taxes
due, or an applicable tax certificate, the property owner personally may not
receive all or any of the said funds, depending on the circumstances. In any
event, it is fair to represent that the money due the property owner will be
withdrawn for his/her benefit because even if it has to be distributed to
such a third party, then Fixel, Maguire & Willis will ensure that the property
owner receives credit accordingly. It should be noted that the same types of
distributions are normally required, whether or not an attorney is
representing a property owner, and whether or not the matter is settled
before suit is filed by the condemning authority. Again, withdrawing
and distributing these initially deposited funds for the benefit of the
property owner does not in any way waive the right to seek additional
compensation.
-
Once the engineer who has
been retained by Fixel, Maguire & Willis for the property owner is able to
complete his work, Fixel, Maguire & Willis and its client should have a full
picture of any negative impacts to the remainder site. Sometimes, for
reasons previously discussed, this can only happen after suit has been filed
and after the order of taking hearing has occurred.
-
Then, the appraiser
who has been retained by Fixel, Maguire & Willis for the property owner
completes his appraisal of full compensation, taking into account
not only the value of the property taken but also severance damages (i.e.
lost value to the remaining property). Sometimes for reasons previously
discussed, this also can only happen after suit is filed and an order of
taking is entered.
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If a business is involved and
qualified to make a claim, the engineer who has been retained by Fixel, Maguire & Willis for the business analyzes the business-related physical impacts that
may exist as a direct result of the use of the property taken. Then, Fixel, Maguire & Willis will typically bring on board an eminent domain accountant and
other eminent domain professionals, as needed, to help determine the
amount of a business damage claim. This determination of the
amount of business damages may have to be concluded at a relatively early
stage of the eminent domain process to meet certain procedural requirements
of applicable law. That may mean determining business damages earlier
in the eminent domain process than is shown in this outline. Fixel, Maguire & Willis, if retained early enough, will ensure that this occurs and
that it is done in a way as to fully preserve legitimate business damage
claims.
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Throughout the eminent domain
process with Fixel, Maguire & Willis, a series of conferences with
the condemnation experts assigned to the parcel will occur.
These regularly scheduled conferences, together with correspondence, provide
the primary means for client
communications, client feedback and securing settlement authority.
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If the matter was not capable
of being resolved previously to the client's satisfaction, Fixel, Maguire & Willis makes a settlement offer authorized by the client to the
condemning authority. If negotiations cannot be quickly concluded,
Fixel, Maguire & Willis may schedule a settlement conference with the
condemning authority. Sometimes, the client and/or team of eminent domain experts who have helped prepare the client's
claims attend the settlement conference.
-
If the matter is still not
resolved, then usually mediation is scheduled and occurs. Mediation
is like a settlement conference except that a trained neutral facilitator of
settlements (a mediator) is present to help resolve issues and claims with
finality. Mediations are oftentimes successful when settlement conferences
without mediators have not been. Offers and counteroffers made at mediation
are not binding and are not subject to being disclosed later unless a
settlement occurs as a result of the mediation.
-
Approximately ninety-five
(95%) percent of Fixel, Maguire & Willis parcels result in client directed and
fully approved settlements. At a jury trial, the jury decides how
much compensation is to be paid. Normally, the jury has the authority
to render its verdict in any amount at or between the highest and lowest
figures each side's appraisers testify to at trial.
-
Shortly after resolution of
the claims to additional compensation, there normally is a distribution
of the additional funds secured, if any, for the benefit of Fixel, Maguire & Willis's client due these funds. Though it has never occurred
with Fixel, Maguire & Willis's clients, it is possible that the final
compensation could be resolved at an amount less than the condemning
authority's initial deposit resulting in an obligation of the property owner
to pay back the difference.
-
Finally, as set forth
in the Fixel, Maguire & Willis Responsibility for Fees section of this web page,
Fixel, Maguire & Willis’s and retained experts’ fees and costs determined
and secured for services provided to property owners and/or businesses they
have assisted. See Fixel, Maguire & Willis Responsibility
for Fees for more details.
__________________________
This outline of the eminent domain process is intended to set forth the
basics of how that process usually unfolds in Florida. However,
internet subscribers and on-line readers should not act upon this
information without retaining Fixel, Maguire & Willis to complete an in depth
evaluation of the eminent domain process from their particular perspective.
This is because the information contained herein is
not intended to constitute a specific opinion or legal advice without Fixel, Maguire & Willis
being given an opportunity to learn about and take into account all facts,
circumstances, and issues presented by each situation.
This web site and all the information
contained in it is not intended to create, and the receipt of it does not
constitute, a lawyer-client relationship. For such a relationship to
exist, Fixel, Maguire & Willis must be retained by entering into a written agreement
with the internet subscriber or on-line reader who has reviewed the
information in this web site.
For further information about retaining Fixel, Maguire & Willis, please contact Raymer
F. Maguire, III by telephone toll free at (888) 216-6870 or by
e-mail at rmaguire@fla-eminentdomain.com, Joe W. Fixel by telephone toll free at (800)
848-7535 or by e-mail at jfixel@fla-eminentdomain.com,
or Craig B. Willis by telephone toll free at (800) 848-7535 or by
e-mail at cwillis@fla-eminentdomain.com.
©(2006)
Fixel, Maguire & Willis, all rights reserved.
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