2. Can I prevent the taking of my property?

3. How reliable is the information provided to me from the condemning authority during the eminent domain process?

4. What am I entitled to be paid for in condemnation?

The Florida Constitution provides that the owners of property taken are entitled to full compensation.

"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." Florida Constitution Article X, Section 6.

Full compensation includes the fair market value of the property taken plus certain damages to the remaining property due to such things as restricted access, negative drainage consequences, grade changes, and lost parking. You, as a property owner, are generally entitled to be put in as good a position financially as you would have been if your property had not been taken.  In some circumstances, business damages and/or moving expenses can also be secured.

5. How long does the eminent domain process take, how does it work, and how soon should I consider retaining an attorney?

You do not have to accept any of the condemning authority's offers. If you reject one or all offers before your property is acquired, you do not forfeit any of your rights. Why not? First, you have a legal right to take issue with what is being offered without giving up any of your other rights. Second, once the condemning authority makes its offers, it is only fair that you be given a reasonable amount of time to make a fully informed decision as to whether to accept each offer or make an appropriate counteroffer without any penalty.

Moreover, as you make a fully informed decision, it is wise to consider that the condemning authority can make you offers for part of your property without having to consider important details, much less provide you with reliable information, as to what it will ultimately build or how its project will negatively impact your remaining property. Furthermore, these impacts will usually not show themselves until the project is built. But fortunately there is no obligation to accept such offers.

None of your rights are forfeited when Fixel, Maguire & Willis, on your behalf, insists that compensation take into account the full value of the property acquired and also factors having a bearing on any lost value to your remaining property. 

Please read the following four questions and answers for important related information.

7. If I accept the condemning authority's offer, do I forfeit any of my rights?

If you accept the condemning authority’s offer, you may very well be forfeiting important rights. How that may happen is as follows:

(1) Informed decision-making regarding the merits of any condemning authority offers usually will be dependent upon the availability and thorough eminent domain expert analysis of a reasonably complete set of the condemning authority’s construction plans to evaluate all potential negative impacts that the condemning authority’s project may cause to your remaining property which otherwise will not be noticeable until the project is built;

(2) The condemning authority’s project’s construction plans which should reveal how your remaining property will be impacted by the project are not required by law to be complete or binding upon the condemning authority when it makes an offer;

(3) Even if its construction plans are completed and committed to, the condemning authority can make you an offer without taking into account potential negative impacts that its project will cause to your remaining property; and

(4) If you accept such offers, you have likely waived your rights to claim lost value to your remaining property resulting from these negative impacts caused by the condemning authority's project.

Therefore, if you do accept the condemning authority’s offer and you exchange a deed for money to close the deal, you may well foreclose your rights to seek compensation for lost value to your remaining property. This can be true even when that lost value is not noticeable to you until after the condemning authority’s project is completed long after your exchange of the deed for money.

Please read the following three questions and answers for more important information in this regard.

8. When the condemning authority makes its offers to me, does it have to take into account all of its project’s negative impacts to my remaining property, including those that I may not learn of until after its project is completed?

No, it does not.  Ironically, Florida law indicates that the condemning authority is responsible for paying you for many of these negative impacts to your remaining property, but does not obligate the condemning authority to take into account these factors when it makes its offers to you.  This is one of the matters that Fixel, Maguire & Willis can especially assist you with.

Any attempt by the condemning authority to avoid its responsibility in this regard will be vigorously contested by Fixel, Maguire & Willis. Examples of how the condemning authority may seek to avoid its responsibility follow.

A full evaluation of detrimental access, drainage, grade, and other negative land-use related impacts to your remainder site resulting from the condemning authority's planned project is not required to be made available to the condemning authority's own appraiser for consideration in its appraisal of compensation due you. Even when this information is made available to the condemning authority's appraiser, there is no obligation that it be fairly taken into account before offers are tendered to you.

This can result in the condemning authority, through its skilled right-of-way agent, settling (via "deed for money" contracts) with you without having to ever pay for these negative impacts to your remaining property. How can this happen? Because your may only learn of these impacts after you  have unknowingly settled all claims and have not reserved any enforceable future rights.

Later, when the detrimental consequences become known to you, the condemning authority will very likely refuse to pay any money for related damages and avoid all responsibility by claiming that the earlier settlement was comprehensive and complete.  This avoidance of responsibility by the condemning authority will not have to occur if Fixel, Maguire & Willis is retained in the eminent domain process before a settlement is finalized.

Read the next two questions and answers for more specific information as to how Fixel, Maguire & Willis can help in this regard.

9. Once I’m convinced that I am being offered fair market value, is that all I need to know to settle with the condemning authority?

That is all you need to know if you do not desire a free independent appraisal to confirm your conclusions and only if the condemning authority is acquiring all of your property and you will be left with no remaining property.

However, if you will have any remaining property, there very likely could be damages that have not been taken into account. Fair market value is not all you need to know. You likely will be facing serious risks to your remaining property.

Also if you are operating a business, there may be business damages which give rise to business claims that can be pursued and secured.

To make matters worse, many of these damages will not become apparent until the project is built and completed. Examples of what can cause these hidden damages include hard to discover negative drainage consequences, access problems, and grade change impacts.

If these damages are identified and claimed after settlement with a condemning authority, it is very unlikely these damages will be recognized, acknowledged or paid for by the condemning authority.

This is where Fixel, Maguire & Willis, together with its team of experienced eminent domain professionals, can especially assist you as the property owner and/or business before settlement is finalized. Some of these professionals who are available as needed in this regard include condemnation appraisers, engineers, land planners, surveyors, and other experts, machinery and equipment valuation experts, and general contractors. These eminent domain professionals associated with Fixel, Maguire & Willis will make every effort to use their considerable experience to evaluate the issues objectively, fairly, and from your perspective.

One final and very important objective of Fixel, Maguire & Willis is to secure for its clients who have  remaining property a written enforceable right to claim additional damages later in the event the condemning authority builds something different than it has represented it plans to build and this change causes unanticipated negative impacts to the remaining property.

10. Do I really need an eminent domain attorney's assistance?

The condemning authority has skilled acquisition agents, eminent domain attorneys, and appraisers as well as other experts working for it.  Without an experienced eminent domain team working for you, you may not be paid fairly for your property acquired and it is even more likely all negative impacts to your remaining property will not be addressed.  

Generally, the condemning authority's focus is on designing its project to serve its purpose, not on identifying, disclosing, and fully taking into account the project's negative impacts to remaining property and businesses.  This creates significant risks for you because these impacts can be very serious, are usually permanent, but do not appear until the project is completed.  Just a few examples of these negative impacts include unfavorable drainage consequences, driveway connection problems, and detrimental grade changes.

If those impacts are not addressed before you settle your claims, it is very likely you will never be paid for the damages caused by those negative impacts.  An experienced eminent domain team working for you will identify those negative impacts and will attempt to ensure they are fully taken into account as part of any settlement reached with the condemning authority.

So, it is in your interest to ensure that a truly independent appraisal is prepared for you, and that it takes into account all such negative impacts resulting from the condemning authority's proposed project as well as includes fair payment for the property the condemning authority intends to acquire from you.  Again, one key to addressing this objective is to seek the assistance of an experienced eminent domain team focused on all compensation elements you are entitled to by law.   

There are often other risks that an experienced eminent domain attorney can help you avoid by taking pre-condemnation planning steps to protect your interests when the condemning authority's initial activities first become known.  (See Question and Answer 13.)

Fixel, Maguire & Willis’s role, together with the experts it works with, is to focus on its your  interests at all stages of the eminent domain process. Fixel, Maguire & Willis’s goal is to put you in a position to make a fully informed decision as to how to respond to any offers that have been, or ultimately will be, made by the condemning authority. You will make the final decision in that regard. Fixel, Maguire & Willis’s function is to use its experience to advise and recommend as to all issues having a bearing on the value of what is sought to be acquired and the devaluation of what remains.

Fixel, Maguire & Willis’s services, in appropriate cases, result in non-monetary solutions such as construction plan changes to preserve suitable access, realign roadways, restore adequate drainage facilities and other such items in lieu of money damages.

Another very important protection Fixel, Maguire & Willis always seeks to secure for its clients who have a remaining property is a written enforceable right to claim additional damages later in the event the condemning authority builds something different than it has represented it plans to build and this change causes unanticipated negative impacts to the remaining property.

If you have not done so already, read the previous four questions and answers numbered 6 through 9 for more very important information pertaining to why you need an eminent domain attorney's assistance.   
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11.  What has Fixel, Maguire & Willis obtained for its clients in the past?

12. Who pays my attorney’s fees and experts’ fees?

Fixel, Maguire & Willis usually accepts the statutorily formulated fees Florida condemning authorities must pay as payment for the services Fixel, Maguire & Willis provides its property owner clients for pursuing and securing property claims during the eminent domain process, except in three exceptional particular circumstances.  This is clearly set forth in Fixel, Maguire & Willis's Responsibility for Fees section of this web page.

Moreover, no matter the size of the claim involved only experienced eminent domain professionals are used by Fixel, Maguire & Willis as appraisers, engineers, and other specialists, and since the law provides that the condemning authority must pay them reasonable fees for the work done for you, generally they all agree that their fees are limited by what the Florida condemning authority is obligated to pay them.

As to the responsibility for attorney fees regarding business damage claims relating to property targeted to be acquired by the condemning authority, Fixel, Maguire & Willis will meet with each such prospective client and work diligently towards reaching an agreeable means for payment of reasonable fees for assisting the business.  Fixel, Maguire & Willis will work closely with each business so that a fair and acceptable fee arrangement can be put in place.  This will enable the business to pursue legitimate claims and contest unreasonable offers of settlement.  For a more detailed explanation of the difference between property claims and business damage claims and the requirements for business damages, see Questions & Answers #16 & #17.

For more information, see Responsibility for Fees or 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. 
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13.  Is there anything I should be doing before my property is taken other than seeking advice from an eminent domain lawyer and appraiser who are not working for the condemning authority?

Yes, oftentimes there are very beneficial pre-condemnation planning steps which can be taken when the condemning authority's initial activities first become known.  Examples of what can be done 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 taking a position that property is assessed at too high a value can ultimately undermine the credibility of the your 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 your 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 Question and Answer 17.); and

- Extending lease terms to provide 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.
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14. If I have a family or business lawyer who has done work for me in the past, but he/she does not practice much or any eminent domain, can he/she still be involved in some capacity?

Property claims include what should be paid for real estate that is taken and lost value to remaining real estate caused by a condemning authority’s project. These damages to remaining real estate are often referred to as severance damages (i.e. damages caused by a condemning authority acquiring a portion of property thereby leaving a severed remaining property).  In contrast, business damage claims include lost profits, lost good will, etc. suffered by an operating business as a result of a government taking of private property where a business operation is located.  Additionally, a claim for trade fixtures can often be made as part of the business damage claim.

Damages to remaining property and business damages are not duplicative because business damages can only relate to business losses while damages to remaining property can only relate to lost value of untaken remaining real estate. However, the real life negative impacts of projects which cause business damages and damages to remaining property can be similar – e.g., loss of access, loss of parking, drainage complications, etc.

Generally, the business owner qualifies:

• Only for the length of time the business owner has a legal right to remain on the property;

• Where an established business has been in place for at least five years;

• Where there is a partial -- as opposed to a whole -- taking;

• Where the damage is a direct result of the loss of use of the land physically taken and part of the business is located on what remains;

• Where the taking is for right of way and is by a Florida public entity (e.g. Department of Transportation, a county or a city); and

• Where certain procedural requirements are timely met in terms of preparing and submitting the business damage claim and supportive information. 
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18. If I have a business which does not qualify for business damages, are there other claims that can be made?

Yes. For example, a claim for trade fixtures can often be made. Sometimes moving expenses can be secured. See Compensation Elements. 
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(Money applicable to property claims)

If Fixel, Maguire & Willis assists you in settling all issues before the condemning authority files an eminent domain lawsuit, the money will be distributed to you shortly thereafter.

If you do not authorize and direct Fixel, Maguire & Willis to settle your claims before suit is filed, usually within four to ten weeks of the lawsuit being filed, an order of taking hearing occurs.  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 becoming effective that within 20 days the condemning authority must deposit in the court registry the condemning authority's unilateral 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 what you as the property owner has been initially offered.

At the order of taking hearing Fixel, Maguire & Willis normally asks the judge to consider its request to withdraw the funds anticipated to be ordered by the judge to be deposited by the condemning authority into the court registry for your benefit. Again, this amount of funds is usually equal to or greater than that amount initially offered to you in your capacity as the property owner.

These initial funds due you are normally secured for your benefit within a short period of time of the order of taking hearing. Some of the funds may have to be credited to your mortgage account if you have a mortgage and the language in the mortgage or fairness demands that this occur, and you have not secured a waiver from the mortgage holder. Also, if there is a lien, judgment, or pro rata taxes due, or an applicable tax certificate, you personally may not receive all or any of the funds, depending on the circumstances. In any event, the money due you will be withdrawn for your benefit because even if it has to be distributed to a third party, Fixel, Maguire & Willis will ensure that you receive credit.

These same types of distributions are normally required, whether or not an attorney is representing you as the property owner, and whether or not the matter is settled before suit is filed by the condemning authority.

20. Do I have to be present in court?

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These questions and answers are in the form most commonly posed to and responded to by Fixel, Maguire & Willis, 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 in these questions and answers 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.