Page 96 - Akerman | 2016 Guide to Doing Business in Florida

drainage of the land of one person over or through the land of another. The key to the Florida
constitutional provision is the guarantee of “full compensation” rather than the more customary
“just compensation” found in other jurisdictions. Full compensation is substantially broader and
includes the requirement that the condemning authority pay not only for the taking, but also the
condemnee’s reasonable expenses to defend against the taking. Reasonable expenses
include attorney’s fees as well as other professional fees for such experts as, but not limited to,
appraisers, land planners, engineers, and architects .
9.9.3 Florida Statutes

Chapters 73 and 74, Florida Statutes, establish the process for the exercise of eminent
domain. Chapter 73 establishes the overall procedure for a taking, while Chapter 74
establishes the process for takings qualifying as “Quick Takes” under the applicable statutes.
Chapter 70.001, entitled The Bert J. Harris Private Property Rights Protection Act, provides for
compensation to property owners where property rights have been damaged in instances not
rising to the level of a direct or inverse condemnation. The authority to take has been extended
to other state and local entities by a myriad of specific statutes. These statutes both authorize
and limit the scope of the taking power tailored by the legislature to the specific needs of the
entity.

9.9.4 Public Purpose and Necessity

Both a “Public Purpose” and a “Public Necessity” are required. As in federal law, public
purpose and public use have become synonymous. In reaction to the federal Kelo case, the
Florida legislature adopted legislation prohibiting taken private property from being conveyed to
a private entity within 10 years of the taking. Further, in contrast to many other jurisdictions, the
legislation prohibits takings of private property for slum/blight clearance. Public necessity
needs to be only reasonable necessity, not absolute necessity.

9.9.5 Condemnation Actions
(a) By Condemnor (de jure). As in most jurisdictions, Florida has a bifurcated
process in condemnation. The first issue is the authority for the
condemnation, the liability phase. If the condemning entity succeeds in
obtaining the court’s judgment approving the taking, done at the Order of
Taking hearing, the litigants then move to the second phase of the action, the
damages phase. If the condemning authority fails at the liability phase, the
condemnee is entitled to reasonable fees and costs from the condemnor for
defending the suit. If the condemnee fails to defeat the taking at the liability
phase, no fees or costs are recoverable.

(b) By Property Owner (de facto). Inverse condemnation actions are recognized
in Florida as property rights are guaranteed by the Florida Constitution (Art. X,
§ 6; Art. I, § 9). As in de jure takings, full compensation must be paid to the
aggrieved property owner if it prevails in the liability phase of the case.
However, if the property owner fails in proving the taking, attorney fees and
costs are not recoverable and the property owner may be liable for
governmental costs associated with its defense. The taking occurs when the
government substantially interferes with the property owners use and
enjoyment of the property; the taking may be permanent or temporary.

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