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Inverse Condemnation Claims in Florida

January 13, 2016 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 4 minutes

Real property rights in the United States and in Florida are constitutionally protected.  In Florida, Article X of the Florida Constitution protects a “taking” of one’s private property without just or full compensation.  When government action results in a “taking” of private property, such action results in eminent domain or inverse condemnation claims.  The focus of this post is inverse condemnation claims.

What Is Inverse Condemnation?

Inverse condemnation claims are brought by a private property owner when the government’s actions have resulted in a taking of the property without full compensation.  As one Florida court put it, “the right to inverse condemnation exists when the State, or a corporate entity possessed of the power of eminent domain, has taken private property without lawful authority and without formal exercise of its power of eminent domain.”  Florida Power & Light Co. v. Rader.

There are various types of takings that can result in an inverse condemnation claim.  Examples include certain physical invasions of property (like flooding or dumping of trash); regulatory takings (exercise of police powers); or other government conduct that rises to the level of a taking of real property.

Some cases in Florida hold that to state a claim for inverse condemnation, a property owner must establish there has been a permanent invasion of the land, amounting to an appropriation that is different than merely a property damage claim.  Department of Transportation v. Donahoo and Diamond K Corp. v. Leon County.  Indeed, the court in Diamond K stated that since there was no evidence that any activity permanently deprived the property owner of all beneficial use of its property, no taking occurred. However, case law in Florida also supports compensation to parties for a temporary taking. Decker v. Citrus County.

How Long Do Property Owners Have to Bring an Inverse Condemnation Claim?

The time period for bringing an inverse condemnation lawsuit is four (4) years.  Sarasota Welfare Home, Inc. v. City of Sarasota.  However, the date the “taking” accrued or occurred may be subject to debate and may involve situations where a continuing trespass or nuisance evolves into a taking of one’s property.  Knowledge of harm by the government action is generally sufficient to trigger the accrual of an inverse condemnation claim.  Suarez v. City of Tampa.  However, where the government conduct is continuing (such as continued flooding), the inverse claim may not have accrued, for statute of limitations purposes, until the situation is stabilized.  Suarez involved a city’s dumping of garbage on private property. The court held that the situation was “stabilized” when the city stopped dumping the garbage, not when the owners requested that the city remove the garbage.

Does a Judge or Jury Resolve an Inverse Condemnation Case?

In Florida, a judge will first decide whether there has been a “taking” of private property.  If a taking is found, the case proceeds to a jury trial of 12 persons to determine damages for the taking.

To determine these damages, a private property owner will likely need to engage experts to opine as to the value of the property taken.  For example, a property owner might engage an appraiser and a general contractor to provide opinions as to the value of the property at the time of the taking, as well as what construction costs will be to construct a similar structure elsewhere (since the property owner can no longer use the property for its intended purpose).

Can I Recover Attorneys’ Fees in My Inverse Condemnation Case?

If the property owner is successful with its inverse condemnation case, he/she will be entitled to recover attorneys’ fees and costs, as prescribed by statute. 73.091 and 73.092 Fla. Stat. In addition, the government entity will be liable for pre-judgment interest. 74.061, Fla. Stat.

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