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What Is Eminent Domain?

Eminent domain (also called condemnation) is the process which allows the condemning authority to take property which is considered necessary for certain projects so long as the government pays just compensation.

Eminent domain projects may include road-improvements, schools, public parks, and stormwater facilities.   Most commonly, the condemning authority will acquire land for public improvements projects such as road widenings.

A key attribute of eminent domain is that the government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

The Fifth Amendment of the United States Constitution allows private property to be taken by eminent domain only for a public use. This would mean that the project need not be actually open to the public to constitute a public use. Instead, generally only a public benefit is required.

What Does The Condemning Authority Do?

If the property is identified as being within the required right-of-way for its current project, the condemning authority will notify the property owners and tenants.

The condemning authority will perform a survey for the right-of-way to be acquired.   A representative of the condemning authority will perform a site inspection of the property.

The condemning authority will then appraise the property to be acquired and file for an Order of Taking, sometimes called an OT.

The OT is a legal proceeding in which the condemning authority seeks approval of the proposed acquisition.  If the Court rules in its favor, the condemning authority will deposit an amount equal to the appraised value in an account for the property owner. These funds may be used immediately by the property owner.

Property Owners' and Tenants' Rights

In addition to the condemning authority's appraisal, the owners/tenants are entitled to have an independent appraiser and attorney represent their interests.

It is wise for tenants to have separate representation from the property owner.

Florida law requires the condemning authority to pay for your legal, appraisal, and other expert fees (such as engineers or surveyors), in addition to and separate from any settlement you receive.

Generally, all fees are paid entirely by the condemning authority and not by the owner.

Once the Order of Taking occurs, the owner's team of experts can begin to evaluate the adequacy of the offer made by the condemning authority.

The expert's work may include the feasibility of the proposed cures or mitigation plans, estimates of the value of the owner's real estate, and any damages that might result from the condemning authority's project.

From time to time, the property owner may need to provide input to the attorney and the team of experts.  The attorney, appraiser, engineer, land planner, and accountant, likewise, will attempt to keep the property owners abreast of progress.

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