Free Eminent Domain Legal Counsel. It’s the Law!
Last week I asked a friend of mine who specializes in eminent domain if he would contribute to this blog. Knowledge of eminent domain is critical to business continuity planning. Many of you have faced or will face the prospect of your business being interrupted. As Florida continues to grow, the state’s needs will likely infringe on yours. As the article explains, you can preserve your rights and have the state pick up the tab. Many business owners are unaware of this fact. Knowing this might make it easier to engage with the process sooner, a decided advantage.
I hope you enjoy what Mr. Garlisi has to say and if you have any questions, he will be happy to field them for you.
Business Continuity and Eminent Domain
Eminent domain. You've probably heard of it, but like most of us, won't give it much thought until you have to deal with it. Eminent domain powers permit governments and some other institutions to take your business and other property for a public purpose, even without your consent. These are rather extraordinary powers granted to "condemning authorities", and are permitted under U.S. and Florida laws. At least one court in the State of Florida has referred to eminent domain as, "among the harshest powers known to the law," Canal Authority v. Miller, 230 So.2d 193 (Fla. App., 1969).
Probably the most common example of an eminent domain taking is for the construction or expansion of a roadway. The government may only want to take a few feet into the frontage, however, even these small “strip takes” can have significant impacts on the operations of a business. The site becomes compressed. It may lose parking spaces or make parking less desirable. Circulation on the site may change, impeding normal business operations or otherwise restricting the property’s functional utility. A change in the road’s grade can affect access for certain vehicles. Owners may be facing devastating financial consequences and find themselves hard pressed to pay for legal counsel to assist them.
Free Legal Services – It’s True!
Fortunately, Florida has a unique set of laws that provide a degree of protection and reduce some of the overwhelming obstacles facing owners when their property is subject to a taking in eminent domain. The Florida Constitution provides that private property cannot be taken without full compensation being paid. Full compensation includes the right to counsel at the expense of the condemning authority seeking to take private property. Under sections 73.091 and 73.092 of the Florida Statutes, the condemning authority is responsible for the expenses of an attorney hired by the private owner. They are also responsible for payment of reasonable experts' costs.
Upon learning of the intention to take a portion of their property, an owner can benefit greatly from the assistance of an experienced eminent domain attorney to provide strategic advice. This can begin well before condemnation proceedings actually start. Decisions may be made through an in-house corporate board setting or with a smaller family business advisor. Either way, pre-condemnation planning for the impending loss of all or a portion of your property can be crucial to the health of a business. Frequently however, owners may be hesitant to hire legal counsel to provide strategic advice in pre-condemnation planning because of cost. Often it is not until later in the process that they are made aware of the Florida laws permitting legal counsel at no cost to them.
An interesting example of where pre-condemnation planning would have benefited both the property and business owners is found in the case of Trump Enterprises, Inc. vs. Publix Supermarkets, Inc. Tenant, Trump Enterprises, leased an out-parcel from a shopping center owned by Publix. Absent from the lease agreement between Publix and Trump was any language discussing what to do in the event of a condemnation action. When the State of Florida Department of Transportation took a portion of the shopping center in order to widen an existing road, Trump Enterprises claimed their leasehold interest was affected. They demanded a share of the settlement between the Department of Transportation and Publix and an adjustment to future rental payments. A well-drafted lease agreement executed prior to the condemnation action would have addressed those issues and avoided the costly litigation that followed.
Landlords and business tenants doing business continuity planning will also want to avoid loopholes in the law. These loopholes can cause conflicts or prevent recovery for business damages caused by a taking in eminent domain. Whether a landlord rents to a separate business or operates its own business under a separate corporate name for tax purposes, it is important to have a lease in place. Without an appropriate lease, the corporate tenant will be considered a tenant at will for purposes of a business damage claim. The result is that any award for damages caused by the taking of a portion of the property will be severely limited.
Therefore, at the earliest stage possible, owners should consider using the laws permitting an owner to hire a seasoned eminent domain attorney of their choice without cost to them. It is never too early in the process to consider strategic solutions for the anticipated issues that will adversely affect a business or other property in an anticipated eminent domain case.
Lewis Garlisi is the former Assistant General Counsel with the FDOT, three term Chair of the Eminent Domain Section for the Hillsborough County Bar Association, and currently practices exclusively in the area of eminent domain law on transportation and utility projects representing individuals, small business and large corporations. L.Garlisi@Garlisi.com (813) 767-6055. He is also of counsel with the Florida eminent domain law firm, Brent Simon Law Group, https://fullcomp.com/
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