Eminent domain can be a very threatening legal procedure for the Florida landowner. In this episode, attorney Andrew Diaz, joins Linda to discuss eminent domain and the process of protecting landowner’s property rights.
Below is an excerpt from the interview. Listen above for the full podcast.
How did you become an eminent domain attorney? It's interesting the way you fall into things. When I graduated from Florida State University, I had a real estate degree, and I became a real estate appraiser. I became a state-certified real estate appraiser and worked for a firm that was based in Tampa. I did appraisal work all over the state of Florida. One time. I had an assignment in Orlando where I was involved with appraising property for an eminent domain project. That led me to working as an appraiser in the eminent domain area.
Around that same time, I got summoned for jury duty. When I came back from that experience, I decided that I want to give law school a try. I thought this would be a great combination; using my undergraduate degree in real estate, my experience and certification as an appraiser, and now coupling that with a legal degree. I was fortunate enough to get into Stetson Law School and eventually got hired with the county attorney for Pinellas County. They had a very ambitious road building project in the late 80s and early 90s. I worked there as a law student for two years with the eminent domain lawyers. When I graduated from law school, I passed the Bar as an eminent domain lawyer for Pinellas County. So I got to learn on the government side.
On May 1, 1995, I started working in the private practice representing property owners with my partners today. So we've been working together at the firm that I'm with now, Gaylord Merlin Ludovici & Diaz. I didn't start out thinking that one day I'd be an eminent domain lawyer, but the pieces came together and I feel very blessed and thankful.
What is eminent domain? At its most basic level, it’s the power of the government. We always say the government, but they’re really the utility companies. There are a lot of projects going on in Florida right now, whether it's Florida Power & Light, Duke Energy, some of the water authorities, railroad companies, they all have the power of eminent domain. The legislature has granted those quasi-private businesses with the power of eminent domain. The government or those delegated agencies have the ability to exercise the power of eminent domain. They can take private property, but it's got to be for a public purpose and it's got to be reasonably necessary for that public purpose.
The key to what makes Florida different from almost every other state, is that when these agencies take your property, they have to pay you full compensation. It’s not fair market value, it’s not just compensation, they have to pay full compensation for the property that they take. In the Florida constitution, there's a provision where they can only take your property for public purpose and by paying full compensation.
What should property owners do in these cases? The first bit of advice I would give is to call a lawyer, specifically an eminent domain lawyer. All our law firm does is represent property owners and eminent domain cases. People automatically think that means real estate or land use, but I'm not the guy to call to review a contract, deal with a mortgage, or handle a transaction. I don't do that and I don't try to do that. All we do is make sure that our clients are procedurally treated correctly, that the government goes through the proper steps to do it, and that their rights are protected. At the end of the day, we makes sure that they get every single penny that they're entitled to.
What's great about Florida law, is under that definition of full compensation, the agency that's taking your property has to pay any attorneys’ fees as well. So the property owner has to be paid for not only the property that's taken from them, but also for any negative impacts or loss in value to the remaining property. In a lot of our cases, it can be a very small take, but the damage has a ripple effect that can literally wipe out the entire value of the remaining property.
What is the “highest and best” use? Florida law allows you to look at the property’s highest and best use for the reasonable foreseeable future. You must have an engineer look at this in order to get your arms around what's really happening. Fortunately, the engineers, appraisers, and other experts that are necessary to actually value your property and help you with your claim, are also paid by the state. The property owner gets paid over and above for what's actually being taken.
What happens if somebody refuses to give up their land? There aren't many cases, but this does occur and they will go to a jury. I think the biggest jury verdict in Hillsborough County was a case with my partner, Cary Gaylord. We represented a group of four owners that owned a few blocks. The taking authority offered our clients about $3.5 or 4 million. We were told that if we were going to get any more money, we had to get it from a jury. So we took them at their word and we got a jury verdict of about $9.5 million. So it does happen.
What if you have an unfavorable jury? That's always a risk. One of the reasons that I believe eminent domain cases are resolved through settlement or agreement, is because we're not arguing about liability. The property was taken, they owe you money. The question then becomes: how much money? Jury trials are probably about 5 days to a week and a half. The jury actually gets to go see the property, they do on-site visits. If you've got a client with a good story to tell and the perfect evidence, it may be worth your while to have a jury determine the outcome of the case, but there's always a risk. That goes for both sides.
Who gives the government the right to take someone's property? The whole concept of eminent domain goes back to feudal times. The Kings and Queens owned all the land and your use of it was basically subject to their saying. It goes that far back. There is an eminent domain provision in the U.S. Constitution just like there is an eminent domain provision in the Florida Constitution. We we're talking about this earlier. When you're talking to a potential client, the first thing they say is “Wait a second, how is this just really not costing me any money?”
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For more info on eminent domain issues, please contact Andrew Diaz at 813.221.9000 or visit their website at gaylordmerlin.com.
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