Eminent Domain in Florida: Recovery of Attorney Fees

Roadwork and other governmental projects are prevalent in Florida and often require the government to acquire private property. Both the Florida Constitution and the United States Constitution provide that no private property shall be taken for a public purpose without full compensation. A land owner’s constitutional right to full compensation for property taken by the government includes the ability to recover reasonable attorneys’ fees in the process. JEA v. Williams. The ability to recover attorneys’ fees, even in pre-suit negotiations, is an important consideration for owners when dealing with a government entity seeking to acquire the owner’s real property.

When a government entity attempts to acquire private property, an owner typically receives a letter from the government regarding its acquisition plan. The owner must carefully review that and determine exactly what is being planned and the deal the government is trying to strike. As a general matter, government entities with eminent domain powers can purchase property to complete their project as if they were an ordinary purchaser of real estate. In such instances, often referred to as arms-length negotiations, the property owner is not entitled to attorneys’ fees in connection with those negotiations. However, when it is reasonable for a property owner to conclude the government’s letter is more than an ordinary arms-length offer to purchase property, but rather the initiation of pre-suit negotiations as contemplated by Florida’s eminent domain statute Section 73.015 of the Florida Statutes, the owner can recover its attorneys’ fees from the government in connection with hiring counsel to negotiate the terms of the real property acquisition. Florida’s eminent domain law specifically provides for the owner’s recovery of attorneys’ fees based on the concept of “benefits achieved,” which is the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the government before the owner hires an attorney. Section 73.092 of the Florida Statutes

For example, in General Commercial Properties, Inc. v. State of Florida Department of Transportation, the government developed an early acquisition program, prior to any threat of eminent domain proceedings. As part of that program, the government identified it might need several parcels owned by a particular owner and, as part of the negotiations, sent correspondence to the owner. That correspondence informed that the government’s offer would not be considered the initial offer under its regular acquisition process and would not be used as a basis for attorneys’ fees to be paid in its regular acquisition process. The court determined the government’s letters clearly indicated the offers were not made because the parcels were necessary for the project; indeed, eminent domain proceedings did not begin until seven years after the government’s offer. As such, the court found the government’s initial offer was not one that triggered attorneys’ fees under 73.015 of the Florida Statutes.

On the other hand, in JEA v. Williams, the government sent a letter to the property owner that referenced a particular project name and number, and included a copy of the legal description and survey of the property. That letter also stated the government was planning to acquire utility rights to the owner’s property. In this case, the court found it was reasonable for the property owners to conclude the letter was more than just an arm’s length offer to purchase, but rather pre-suit negotiations under section 73.015 of the Florida Statutes. The court, therefore, awarded attorneys’ fees to the owner based on the difference between the government’s original letter and the final judgment amount.

It is important for land owners to carefully read any correspondence from the government regarding its plans to acquire the owner’s real property. Even if the offer is merely an arms-length offer to purchase property, the owner should consult an attorney as to the consequences of accepting the offer. If, however, the offer letter is considered part of the pre-suit process under Florida eminent domain law, and the property owner hires a lawyer, the owner will be entitled to recover his or her attorneys’ fees pursuant to section 73.092 of the Florida Statutes.