Home | Florida Eminent Domain

Florida's Eminent Domain Laws and Property Rights

PROPERTY RIGHTS IN THE STATE OF FLORIDA

Florida law places a high value on the civil right of private ownership. For example, in 2006, Florida amended its state constitution and statutes to limit the use of eminent domain to take from one private property owner and transfer ownership to another private property owner to only those instances where the Florida Legislature approves of the measure by a 2/3 vote. Likewise, Florida is one of the few states that requires both public and quasi-public condemning authorities to pay for the owner’s attorneys’ fees and costs when eminent domain is exercised under color of state law. These protections have not thwarted Florida’s continued growth and prosperity, they are a reflection of it.

Property rights in Florida spring forth from our state’s guarantee of “full compensation” granted in Article X, Section 6 of Florida’s Constitution. The payment of attorneys’ fees and reasonable experts’ costs by the condemning authority assists in leveling the playing field between condemnee and condemnor when private property is needed for a valid public purpose. Consistent therewith, Chapters 73 and 74, Florida Statutes, compose our eminent domain code which further recognizes severance damages and business damages under certain criteria. Florida law not only protects owners with cognizable claims under direct and inverse condemnation, but also provides an avenue for compensation in circumstances in which the government has unjustly taken or unduly burdened private property pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act.

Meet OCA's Florida Attorney

Andrew Prince Brigham

Andrew Prince Brigham

Andrew Prince Brigham is a third generation trial lawyer with experience in complex, high-profile cases involving real estate of many kinds. He is experienced in cases heavily litigated with land use and zoning issues, where use and value of real estate are at stake. With respect to eminent domain, Mr. Brigham has not represented the government or other condemning authorities (for example, natural gas pipeline or electrical transmission line companies), only property and business owners.

A SUMMARY OF FLORIDA'S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Powers?

    Fla. Stat. §73.013 allows the State of Florida, any political subdivision (counties, cities, towns, villages, special tax school districts, special road and bridge districts, etc.), or any other entity to which the power of eminent domain has been delegated, to condemn property for public uses, such as transportation infrastructure or public schools and hospitals.

    Florida law does not allow for eminent domain to facilitate private-to-private transfers of property, but Fla. Stat. §§361 does grant the eminent domain power to quasi-public utility providers, some of which are private, for-profit companies. §73.014 prohibits the use of eminent domain to eliminate nuisance, slum or blight conditions formerly available under §163 Community Redevelopment.

  • What Are the Legal Requirements for Exercising the Power?

    A condemning authority must have the right to condemn, either granted by statute or delegation from the State, coupled with a valid public purpose before private property can be taken. Florida requires condemning authorities filing under state law to make a good faith effort to acquire the property through negotiating with the owner prior to a lawsuit being filed. The procedures for this presuit good faith negotiation are outlined in Fla. Stat. §73.015. If presuit negotiations are unsuccessful, the condemnor most often initiates a “quick taking” by seeking an order of taking from a judge. Such an order will be granted if the condemnor proves to the judge that the property is reasonably necessary for the completion of the valid public purpose and that the condemning authority has premised a good faith estimate of value on a valid appraisal.
    If an “order of taking” is entered, the condemning authority will also need to make a good faith deposit of funds before acquiring the property. The owner may withdraw these funds without prejudice, proceeding toward a future settlement or jury trial to determine the final amount of compensation owed the owner.

    Importantly, once the deposit is made, the title to the parcel taken transfers to the condemnor, meaning that the owner may be forced to vacate themselves or their personal property from the property at that time or soon after. The date of the initial deposit is considered to be the “date of value” for subsequent valuation proceedings.

    To learn more about the procedural aspects of eminent domain cases in Florida, look to Fla. Stat. §§ 73 & 74.

  • What Limitations or Defenses Exist?

    The condemning authority must show it has a valid public purpose and that certain property is reasonably necessary to achieve that purpose. It is important to ensure the condemnor is only taking what it needs to construct its project, which can include permanent fee takings as well as temporary construction easements (both of which are compensable). A condemning authority is only authorized to take the quantity and quality of estate reasonably needed for its project.

    There are various procedural elements that must be met at the order of taking hearing. As an example, a owner could argue that a valid resolution was not attached to the petition as required, or that the condemnor did not properly state the authority under which it is granted the taking power.

  • What Constitutes a Public Purpose?

    Public purpose is ultimately a question for the judiciary. However three characteristics are identified by Florida’s eminent domain bar as common to the relevant case law: (1) the property acquired must be available to the public in common; (2) the public interest in the project must predominate over the private gain; and (3) the manner of enjoyment or use of the property acquired must be in the control of the public.

    The following are examples of uses that are almost always deemed for public purposes: roads, pedestrian/bicycle ways, rest areas, powerlines and pipelines, drainage systems, water treatment facilities, parks, schools, and hospitals. See Chapter 3, The Public Purpose Doctrine, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

  • How is Just Compensation Determined?

    Florida’s Constitution differs from the U.S. Constitution, in that it calls for “full compensation” as opposed to “just compensation.” The “full compensation” standard is more robust than the “just compensation” standard. Fair market value is said to be equivalent to “just compensation;” under Florida law. Fair market value, while a reliable tool of measurement, is not the exclusive measuring stick. The measure of “full compensation” under Florida law is to put the owner back in the same position after the taking as the owner was before the taking in so far as is possible or practicable — to make the owner “whole.” When less than the whole property is taken, the owner is entitled to the value of the land and improvements taken, as well as the severance damages incurred to the remainder property. “Full compensation” has also been determined to include moving costs, interest, attorneys’ fees, and experts’ costs. See Dade County v. Brigham, 47 So.2d 602 (Fla. 1950). Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

  • How Is Fair Market Value Defined?

    Fair market value (FMV) is the generally accepted starting point for determining compensation. The Florida Supreme Court has held that FMV is an important but not exclusive element of the compensation formula. FMV is meant to reflect the amount of money that a purchaser willing but not obliged to buy would pay an owner willing but not obliged to sell, taking into consideration all uses to which the property is adapted or might be applied in reason. This may include reasonably probable future changes in zoning. Property is valued at its highest and best use at the time of the taking, meaning the most profitable use to which the property is being put or reasonably might be put. See State Road Dept. v. Stack, 231 So.2d 859 (Fla. 1st DCA 1969). Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

  • What About Recovering Damages to Remaining Property?

    Damages to the remaining property in partial takings cases are referred to as “severance damages” and are available to property owners in Florida as long as the damages are suffered as a result of the taking. See Fla. Stat. §73.071.

    The amount of such damages are measured by the reduction in value to the remainder property. Typical examples of severance damages include: reduction in size or change in shape of remainder, diminution of access, damages resulting from use of taken property, changes in grade, or loss of aesthetic value. Florida law also recognizes loss in value resulting from market fear or stigma associated with the use to which the condemnor will put the property taken as part of severance damages.

    Owners may assume the worst case scenario as related to severance damages, so long as they are supported by the construction plans to which the condemnor is bound, and are not speculative as to the future use of the property. While owners are not required to mitigate damages, “cost to cure” plans which represent the cost of an attempt to ameliorate the damages must be assessed by both parties’ appraisers in valuing the remainder. Under Florida law, not by constitution, but by statute, an owner may be entitled to “business damages” in partial taking cases for the loss of business activities occurring upon the property taken that have been in continuous operation for a period of five years preceding the taking. See also Fla. Stat. §73.071. Business damages are in addition to compensation paid for real estate and are available to those that Florida law defines as “owners” which includes those having a leasehold interest in the property taken. See Broward County v. Patel, 641 So.2d 40 (Fla. 1994); FDOT v. Armadillo Partners, Inc., 849 So. 2d 279 (Fla. 2003). See also Fla. Stat. §73.071. Chapter 9, Compensation, Florida Eminent Domain Practice and Procedure, Eleventh Edition (2019).

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Yes, in eminent domain cases. The condemning authority is required to pay attorneys’ fees and reasonable litigation costs, including experts’ fees. This is part of the measure of compensation guaranteed under “full compensation” under Art. 10, Sec. 6 of the Florida Constitution. Attorneys’ fees, in most instances, are “result-oriented” and are measured by a sliding percentage scale based upon both monetary and non-monetary benefits achieved for the owner. See Fla. Stat. §73.092. Importantly, while the fee is determined by the difference between the condemnor’s initial offer and the final award (whether agreed to by settlement or determined by a jury), the fee does not come out of the award to the owner, but is paid in addition to it by the condemnor.

    In addition to attorneys’ fees, a condemnor is required to pay for all “reasonable and necessary” costs incurred by the owner in defense of eminent domain. See Fla. Stat. §73.091. Typically, the owner is responsible to pay the costs that are not otherwise reimbursed by the condemning authority. It is important to discuss with counsel at the outset of a case how he or she intends to manage costs and what financial exposure may exist to the owner.

    The owner may also be entitled to reimbursement of reasonable attorneys’ fees and costs incurred on appeal if the appeal is taken by the condemning authority or on appeal taken by the owner if the owner prevails. See Fla. Stat. §73.131. See Dade County v. Brigham, 47 So.2d 602 (Fla. 1950). See also Fla. Stat. §73.091; Fla. Stat. §73.092; and Fla. Stat. §73.131.

REFERENCES AND LINKS

Florida

Brigham Property Rights Law Firm PLLC
2963 Dupont Avenue Suite 3
Jacksonville, FL 32217
Tel: (800) 455-1440 | Fax: (904) 733-7633
abrigham@propertyrights.com | www.propertyrights.com

Andrew Prince Brigham is a third generation trial lawyer with experience in complex, high-profile cases involving real estate of many kinds. He is best known for work throughout Florida representing property or business owners in eminent domain proceedings. His energetic style of practice reflects his view that it is a privilege to protect the civil right of private ownership and that the practice of law is a high professional calling.

Mr. Brigham has also been retained in complex real estate litigation involving valuation, division, title, and use of real property. He founded his present law firm in 2012 under the name Brigham Property Rights Law Firm with its office in Jacksonville, Florida.

In 2008, Mr. Brigham was lead counsel in a case where he obtained the largest jury verdict in Florida state court eminent domain proceedings in the amount of $67,410,000 against the Jacksonville Port Authority. More recently, in 2013-2018, he was lead counsel in cases where he obtained three of the four largest jury verdicts in Florida state court eminent domain proceedings in the past five years against the Florida Department of Transportation in the amounts of $2,800,000, $2,900,000, and $4,905,000.

As part of an ad hoc task force made up of lawyers representing property owners and condemning authorities, Mr. Brigham drafted revisions to the Florida Eminent Domain Code in 1998/1999 (Chapters 73 & 74 Florida Statutes). He testified before the Florida House and Senate in 2006 following the U.S. Supreme Court’s opinion in Kelo v. City of New London, Conn. resulting in both statutory reform and constitutional amendment. He currently chairs the Advisory Board for the Brigham-Kanner Property Rights Conference sponsored by William & Mary Law School in Williamsburg, Va.

A nationally recognized speaker, Mr. Brigham is regularly invited to speak on eminent domain and property rights issues at legal, business, appraisal, and academic seminars throughout the country. For over ten years, he has co-chaired “Condemnation 101,” a national seminar sponsored by the American Law Institute which he co-created to offer instruction to attorneys on the preparation and presentation of an eminent domain case. He also co-chairs the Florida Eminent Domain Seminar, sponsored by CLE-International, which is attended by lawyers and other eminent domain professionals throughout Florida.

Speaking Engagements

  • American Law Institute, Condemnation 101. Mr. Brigham presents annually at the seminar geared toward instructing lawyers who are new to the practice of eminent domain. More recently, Mr. Brigham has presented on“Identifying Key Differences in Your Case” (2014), “Trial Exhibits that Work” (2015), “Introduction to Eminent Domain: Foundational Concepts” (2016), “Telling the Story of Your Case” (2017), and “Eminent Domain Exhibits: More than Show and Tell” (2019).
  • American Law Institute, Eminent Domain Valuation & Litigation. Mr. Brigham has presented several times over the past twenty years, including presentations on “The Electrical Engineer in Powerline Cases: Expert and Order of Proof” (2016), “Teamwork Jury Consulting” (2017), “Natural Gas Pipelines – Compensation Pitfalls” (2019).
  • CLE-International, Florida Eminent Domain Seminar. Mr. Brigham presents annually at the seminar attended by lawyers and eminent domain professionals statewide in Florida. More recently, Mr. Brigham has presented on“Judicial Recognition of New Challenges: Acquisition Policies and Practices in the Context of Design/Build Projects” (2016), “Humdingers: Panel Discussion on How to Win Cases” (2016), “Chill in the Air: Government Seeking Sanctions Under §57.105, Fla. Stat.” (2017), and “Orchids in Bloom: Wekiva Parkway Project” (2017). 
  • Eighth Annual Brigham Kanner Property Rights Conference, William & Mary College of Law. Mr. Brigham presented on “How Practitioner’s Shape the Law” (2011), Beijing, China.
  • Sixteenth Annual Brigham Kanner Property Rights Conference, William & Mary College of Law. Mr. Brigham will be presenting on Panel #3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest Is Promoted by a Non-Governmental Entity” (2019).

Bar Admissions and Memberships

  • Florida Bar, 1991-Present
  • United States District Court, Northern, Middle, and Southern Districts of Florida
  • United States Eleventh Circuit Court of Appeals

Professional Affiliations

  • Advisory Board, Brigham-Kanner Property Rights Conference

Education

  • University of Florida Levin College of Law, J.D., 1991
  • Wheaton College, B.A. (English Literature), 1988

Honors

  • AV® Preeminent TM Peer Review Rated by Martindale-Hubbell®
  • Named in Best Lawyers® Purely-Peer ReviewTM for years 2007-2019 and recognized as Lawyer of the Year® (2020) for Eminent Domain and Condemnation Law.
  • Selected in Super Lawyers® Editions by Thomson Reuters® in business practice areas particular to construction, real estate, & environmental, which includes eminent domain for years 2007-2019.

Andrew Prince Brigham is a third generation trial lawyer with experience in complex, high-profile cases involving real estate of many kinds. He is best known for work throughout Florida representing property or business owners in eminent domain proceedings. His energetic style of practice reflects his view that it is a privilege to protect the civil right of private ownership and that the practice of law is a high professional calling.

Mr. Brigham has also been retained in complex real estate litigation involving valuation, division, title, and use of real property. He founded his present law firm in 2012 under the name Brigham Property Rights Law Firm with its office in Jacksonville, Florida.

In 2008, Mr. Brigham was lead counsel in a case where he obtained the largest jury verdict in Florida state court eminent domain proceedings in the amount of $67,410,000 against the Jacksonville Port Authority. More recently, in 2013-2018, he was lead counsel in cases where he obtained three of the four largest jury verdicts in Florida state court eminent domain proceedings in the past five years against the Florida Department of Transportation in the amounts of $2,800,000, $2,900,000, and $4,905,000.

As part of an ad hoc task force made up of lawyers representing property owners and condemning authorities, Mr. Brigham drafted revisions to the Florida Eminent Domain Code in 1998/1999 (Chapters 73 & 74 Florida Statutes). He testified before the Florida House and Senate in 2006 following the U.S. Supreme Court’s opinion in Kelo v. City of New London, Conn. resulting in both statutory reform and constitutional amendment. He currently chairs the Advisory Board for the Brigham-Kanner Property Rights Conference sponsored by William & Mary Law School in Williamsburg, Va.

A nationally recognized speaker, Mr. Brigham is regularly invited to speak on eminent domain and property rights issues at legal, business, appraisal, and academic seminars throughout the country. For over ten years, he has co-chaired “Condemnation 101,” a national seminar sponsored by the American Law Institute which he co-created to offer instruction to attorneys on the preparation and presentation of an eminent domain case. He also co-chairs the Florida Eminent Domain Seminar, sponsored by CLE-International, which is attended by lawyers and other eminent domain professionals throughout Florida.

Speaking Engagements

  • American Law Institute, Condemnation 101. Mr. Brigham presents annually at the seminar geared toward instructing lawyers who are new to the practice of eminent domain. More recently, Mr. Brigham has presented on“Identifying Key Differences in Your Case” (2014), “Trial Exhibits that Work” (2015), “Introduction to Eminent Domain: Foundational Concepts” (2016), “Telling the Story of Your Case” (2017), and “Eminent Domain Exhibits: More than Show and Tell” (2019).
  • American Law Institute, Eminent Domain Valuation & Litigation. Mr. Brigham has presented several times over the past twenty years, including presentations on “The Electrical Engineer in Powerline Cases: Expert and Order of Proof” (2016), “Teamwork Jury Consulting” (2017), “Natural Gas Pipelines – Compensation Pitfalls” (2019).
  • CLE-International, Florida Eminent Domain Seminar. Mr. Brigham presents annually at the seminar attended by lawyers and eminent domain professionals statewide in Florida. More recently, Mr. Brigham has presented on“Judicial Recognition of New Challenges: Acquisition Policies and Practices in the Context of Design/Build Projects” (2016), “Humdingers: Panel Discussion on How to Win Cases” (2016), “Chill in the Air: Government Seeking Sanctions Under §57.105, Fla. Stat.” (2017), and “Orchids in Bloom: Wekiva Parkway Project” (2017). 
  • Eighth Annual Brigham Kanner Property Rights Conference, William & Mary College of Law. Mr. Brigham presented on “How Practitioner’s Shape the Law” (2011), Beijing, China.
  • Sixteenth Annual Brigham Kanner Property Rights Conference, William & Mary College of Law. Mr. Brigham will be presenting on Panel #3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest Is Promoted by a Non-Governmental Entity” (2019).

Bar Admissions and Memberships

  • Florida Bar, 1991-Present
  • United States District Court, Northern, Middle, and Southern Districts of Florida
  • United States Eleventh Circuit Court of Appeals

Professional Affiliations

  • Advisory Board, Brigham-Kanner Property Rights Conference
close