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EMINENT
DOMAIN PROCESS
[Lawsuit Filed]
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If the matter
is not settled in a way acceptable to the property owner at the presuit 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.
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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.
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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.
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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.
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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.
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Then, the appraiser
will complete 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).
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Throughout the eminent domain
process with Fixel, Maguire & Willis, a series of conferences
with
the condemnation professionals 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
professionals who have helped prepare the client's
claims attend the settlement conference.
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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.
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If the matter is resolved
before trial, a Stipulated Final Judgment is signed by the attorneys for the
parties and then signed by the Judge. The condemning authority has 30
days from receipt of the executed document to deposit the additional funds
into the Court Registry. The document will direct the Clerk of Court
to pay the funds to Fixel, Maguire & Willis's trust account once they have
been deposited. Fixel, Maguire & Willis will then distribute the funds
in accordance with the Stipulated Final Judgment.
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If the matter is not resolved
at mediation or before, then Fixel, Maguire & Willis proceeds
on to jury trial. 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.
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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.
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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.
©(2010) Fixel, Maguire & Willis, all rights reserved.
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