If you own property in Florida, your private property cannot be condemned or taken by the government, unless the government takes it for a public purpose and you are fully compensated for the taking. The Florida Constitution guarantees that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner.” Art. X, § 6(a), Fla. Const. But what does it mean to be an “owner” of property? You may not own the property outright, but you may have some valuable right or interest in the property. Let’s say you are a tenant; an easement holder; an owner of mineral or timber rights; or even someone who has a future option to purchase the property—you own an interest in the property, and you are entitled to full compensation.
“Full compensation” is designed to make the property owner whole, as if the condemnation never occurred, and the owner voluntarily sold the property. Full compensation often includes payment for the value of the property taken, damages to the remainder, moving costs, interest, attorneys’ fees and the cost of experts, such as engineers and appraisers. However, the concept of “full compensation” may seem complicated when the taking involves a specific right to use, access or possess the property. This article is the first of a series of articles addressing what “full compensation” means to owners when the government takes specific interests in the property.
If the government takes an easement interest in your property through eminent domain, you are entitled to full compensation.
In many cases, the condemning authority may only seek a portion of the property. In those cases, the condemnor will likely seek an easement. Property easements are a legal right to use property either temporarily or permanently. Easements and ownership interests in the possession, use and enjoyment of property can come in many different forms. Some of the most common examples of easements that may be involved in eminent domain are as follows:
- Utility easements – a public utility may need part of your land to construct and install infrastructure and thereafter, access your property to service the utilities;
- Construction Easements – condemning authorities may need to temporarily use your land during the construction phase of a public project, which often requires a company to store materials and heavy machinery on your property;
- Slope Easements – some public projects may require part of your land to be raised or lowered to provide for efficient water retention or drainage, and properly level sidewalks, roadways or bike paths
- Right of Ingress and Egress – ingress and egress easements allow another party to access and cross over parts of your property to access and service utility equipment
An owner’s rights to compensation under eminent domain are no different than if the condemnor seeks possession of the entire property. The condemning authority cannot destroy or take a private easement without just compensation. Compensation is due “[w]henever lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by the exercise of eminent domain.” City of Miami Beach v. Belle Isle Apartment Corp., 177 So.2d 884 (Fla. 3d DCA 1965). In addition to the common types of easements listed above, courts have considered whether just compensation is due in various factual circumstances:
- An owner whose property is taken for a drainage easement; Blankenship v. Dept. of Transportation, 890 So.2d 1130 (Fla. 5th DCA 2005).
- Compensation is due when the condemning authority exceeds the scope of rights afforded by an existing easement Florida State Turnpike Authority v. Anhoco Corp., 116 So.2d 8 (Fla. 1959).
- An owner of property with access to a private road is entitled to compensation when the government converts that road to a public road See City of Miami Beach
- A neighboring owner of property adjoining the condemned property, who holds access and parking rights may be entitled to compensation Columbia Sussex Corp. v. Division of Administration, State of Florida Dept. of Transportation, 425 So.2d 90 (Fla. 1st DCA 1982).
- An owner of a right to construct and operate a water system on property is a property right that cannot be taken without just compensation City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888 (1932)
Full compensation for the taking of an easement often depends on the scope of rights you own and the scope of rights taken by the condemning authority. If the condemning authority takes broad and unrestricted rights to the property, that taking may considered a “whole take.” If the owner is deprived of all practical use of his or her property (or the remainder of the property) after a taking, the owner is entitled to compensation for the fee simple title. Smith v. City of Tallahassee, 191 So.2d 446 (Fla. 1st DCA 1966). Conversely, if the owner retains broad rights to the property, the compensation for the taking will be limited, accordingly. Generally, the appropriate compensation for the taking of an easement is calculated by the difference in the fair market value of the land without the easement, and the fair market value of the land with the easement. Cordones v. Brevard County, 781 So.2d 519 (Fla. 5th DCA 2001).
While the specific examples above are by no means exhaustive, the key takeaway is that virtually any interest in property can be affected by eminent domain, and if those rights are adversely affected in any way, just compensation is due. Every owner should consider the full scope and effects that the taking may have upon his or her interest in the property. The owner should then engage in the process of valuing the easement and the value of the remaining use and enjoyment of the property after the taking has occurred. Only then will the owner be in the best position to negotiate and retain full and fair compensation for the taking of the easement.