Inverse Condemnation – Property Owners’ Damages

In Florida, property owners are entitled to receive full and fair compensation when their property is taken by a governmental entity.  Property takings can involve less than a property owner’s entire property.  When that happens, full compensation for the property includes both the value of the portion taken and any damage to the remainder caused by that taking.  Those “remainder damages” are also referred to as severance damages.  A recent Florida court decision is instructive on property owners’ claims for severance damages.  Florida Department of Transportation v. Butler Carpet Company, 42 Fla. L. Weekly D1234b (“FDOT”).

In FDOT, two property owners brought inverse condemnation claims against FDOT in connection with a state highway project that affected portions of their property.  These properties were located on opposite sides of the highway.  Prior to the highway project, customers could directly access these properties, via a driveway that connected to the main road, as well as by other local roads.  As a result of the project, customers no longer had direct access from the highway to the owners’ properties.  There was no dispute the highway project encroached on small portions of the owners’ properties, without their permission.

The trial courts found the two property owners were entitled to damages from FDOT for both encroachment on their properties, as well as severance damages for loss of access and visibility and damages for substantially diminished access.

On appeal, FDOT argued the trial courts were incorrect in finding severance damages for loss of access and visibility.  According to FDOT, the loss of access and visibility was not a direct result from a physical taking but, instead, from the overall impact of the highway project and the frontage roads on FDOT’s own property.  FDOT also argued against the trial courts’ findings that these property owners were entitled to compensable damages for the project diminishing access to their properties.  The appellate court agreed with the FDOT’s arguments on these points.

In doing so, the appellate reiterated the general rule on severance damages that when less than the entire property is taken by a governmental entity, payment for damages to the remainder can only be awarded if those damages are caused by the taking.  The court went on to say:

where there has been a partial taking of property and the landowner brings a claim for loss of access, the trial court must first determine whether the claimed loss of access is a direct result of the use or activity on the land taken or whether it is solely the result of activity that occurred on property other than that taken from the property owner.  If the claimed loss of access is not caused by the use to which the property taken has been applied, the property owner is not entitled to severance damages for loss of access.

The appellate court held the property owners were not entitled to severance damages for loss of access, as the lost access did not relate to FDOT’s construction of the highway project.  Instead, the lost access claims were founded on the reconfiguration of the highway and construction of a frontage road system on FDOT’s existing right-of-way.  Simply put, the property owners’ claims for loss of access were not compensable because they arose out of FDOT’s use of its owner right-of-way, independent of those small areas of land taken from the property owners.

As to the owners’ claim for diminution of access, FDOT did not block all access to the highway; instead, the highway project included frontage roads that provided access to the highway from the owners’ properties.  The fact that there was a circuity of access to those properties did amount to a compensable claim.  Since access to the owners’ properties was not substantially diminished, the owners had no claim against FDOT.

As to the owners’ loss of visibility claim, the general rule is that any decrease in visibility suffered as a result of the highway project was not compensable, unless some damage from the claim is proven.  In the FDOT case, the owners failed to demonstrate any damage as a result of their loss of visibility claim.

It is important for property owners to understand their rights when property is taken by a governmental entity through either eminent domain or inverse condemnation.  In the event of such takings, owners are entitled to full and fair compensation for their property, including severance damages.

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