FAQ Eminent Domain & Property Rights

Severance damages occur when the government takes only a portion of your property, leaving you with a “remainder.” Often, the part you keep is worth significantly less than it was when it was part of the whole.

Common examples include a road widening project that takes your storefront’s parking lot, or a utility easement that cuts through the middle of a developable lot, making the remaining halves too small for their intended use. Severance damages compensate you for this “loss in value” to the land you still own. Proving these damages requires sophisticated appraisal and engineering experts to demonstrate how the government’s project has permanently impaired the utility of your remaining property.

Florida is one of the few states that allows business owners to recover “Business Damages” lost profits and decreased business value resulting from an eminent domain taking. However, to qualify, the business must meet the 5-year rule.

The business must have been an established, ongoing operation at that specific location for at least five years prior to the government’s notice of taking. These damages are separate from the value of the real estate and are intended to compensate the owner for the unique “probable” losses to their operations, such as loss of customer access or the cost of re-establishing the business elsewhere.

Yes, though the burden of proof is high. You can challenge a taking on two main grounds: Public Purpose and Necessity.

The government must prove that the land is being taken for a valid public use, such as a road, school, or utility line, and not solely for the benefit of a private developer. Additionally, they must show that taking your specific property is necessary to achieve that goal. While courts often defer to government planning, an experienced attorney can challenge whether the government has abused its discretion or failed to consider less intrusive alternatives.

Inverse condemnation is the “mirror image” of a standard eminent domain case. In a standard case, the government files a lawsuit to take your land. In Inverse Condemnation, the government has effectively “taken” or ruined your property’s value without filing a lawsuit or offering compensation.

This often happens through “regulatory takings,” where a new zoning law or environmental restriction leaves your land with no viable economic use. It can also occur physically, such as when a government drainage project causes permanent or recurring flooding on your private land. In these cases, the property owner must “go on the offense” and sue the government to force them to pay for the value they have destroyed.

In Florida, one of the most significant protections for landowners is that the government is responsible for paying your reasonable attorney’s fees and litigation costs.

The philosophy behind this law is simple: if you have to spend $50,000 on lawyers and appraisers just to get the government to pay you the “fair” value of your land, you haven’t really received full compensation. By requiring the condemning authority to pay these fees separately, the law ensures that your constitutional right to be made “whole” is protected. This allows landowners to hire elite legal and expert representation without worrying about the cost.

Under Florida’s “Quick-Take” statutes (Chapter 74), the government can take title and possession of your property before a final trial on the amount of compensation.

To do this, the government must first file a lawsuit and deposit a “good faith estimate” of the property’s value into the court registry. Once the money is deposited, the government technically owns the land and can begin construction. However, the property owner has the right to withdraw that money and still continue the litigation to prove that the “true” value of the taking is much higher than the government’s initial estimate.

Unlike real estate appraisals which look at comparable land sales, business damages are calculated by forensic accountants who analyze the financial health of your company.

The calculation looks at “before and after” scenarios: What was the value of the business before the taking, and what is the value now that the project has limited access, reduced parking, or forced a relocation? This can include lost profits, the cost of moving specialized equipment, and the loss of “goodwill.” Because these calculations are complex and highly scrutinized by government lawyers, having a detailed “story” of your business’s history and financial trajectory is essential.

An Order of Taking is a court order that officially transfers the title of your property to the government. This usually occurs early in the process during a “Quick-Take” hearing.

At this hearing, the judge doesn’t decide how much you get paid, that happens later. Instead, the judge only decides if the government has the legal right to take the land and if their “Good Faith Estimate” of value is reasonable enough to allow them to take possession. Once the Order of Taking is signed, the property owner becomes a “defendant” in a valuation trial, where the final price of the land and any damages will be determined by a jury.

If a government agent or “right-of-way” representative contacts you about a project, the most important rule is: Do not sign anything and do not agree to a “voluntary” appraisal without counsel.

These agents are often tasked with acquiring land as cheaply and quickly as possible. Anything you say about the property’s use or value can be used against you later in court. Simply tell the agent that you are seeking legal counsel to ensure your rights are protected. In Florida, since the government typically pays for your attorney anyway, there is no reason to negotiate on your own and risk accepting an offer that fails to account for hidden severance or business damages.