(1) Before an eminent domain proceeding is brought under this chapter or chapter 74, the condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired, must provide the fee owner with a written offer and, if requested, a copy of the appraisal upon which the offer is based, and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.
(a) No later than the time the initial written or oral offer of compensation for acquisition is made to the fee owner, the condemning authority must notify the fee owner of the following:
1. That all or a portion of his or her property is necessary for a project.
2. The nature of the project for which the parcel is considered necessary, and the parcel designation of the property to be acquired.
3. That, within 15 business days after receipt of a request by the fee owner, the condemning authority will provide a copy of the appraisal report upon which the offer to the fee owner is based; copies, to the extent prepared, of the right-of-way maps or other documents that depict the proposed taking; and copies, to the extent prepared, of the construction plans that depict project improvements to be constructed on the property taken and improvements to be constructed adjacent to the remaining property, including, but not limited to, plan, profile, cross-section, drainage, and pavement marking sheets, and driveway connection detail. The condemning authority shall provide any additional plan sheets within 15 days of request.
4. The fee owner’s statutory rights under ss. 73.091 and 73.092, or alternatively provide copies of these provisions of law.
5. The fee owner’s rights and responsibilities under paragraphs (b) and (c) and subsection (4), or alternatively provide copies of these provisions of law.
(b) The condemning authority must provide a written offer of compensation to the fee owner as to the value of the property sought to be appropriated and, where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking. The owner must be given at least 30 days after either receipt of the notice or the date the notice is returned as undeliverable by the postal authorities to respond to the offer, before the condemning authority files a condemnation proceeding for the parcel identified in the offer.
(c) The notice and written offer must be sent by certified mail, return receipt requested, to the fee owner’s last known address listed on the county ad valorem tax roll. Alternatively, the notice and written offer may be personally delivered to the fee owner of the property. If there is more than one owner of a property, notice to one owner constitutes notice to all owners of the property. The return of the notice as undeliverable by the postal authorities constitutes compliance with this provision. The condemning authority is not required to give notice or a written offer to a person who acquires title to the property after the notice required by this section has been given.
(d) Notwithstanding this subsection, with respect to lands acquired under s. 253.025, the condemning authority is not required to give the fee owner the current appraisal before executing an option contract.
(2) Before an eminent domain proceeding is brought under this chapter or chapter 74 by the Department of Transportation or by a county, municipality, board, district, or other public body for the condemnation of right-of-way, the condemning authority must make a good faith effort to notify the business owners, including lessees, who operate a business located on the property to be acquired.
(a) The condemning authority must notify the business owner of the following:
1. That all or a portion of his or her property is necessary for a project.
2. The nature of the project for which the parcel is considered necessary, and the parcel designation of the property to be acquired.
3. That, within 15 business days after receipt of a request by the business owner, the condemning authority will provide a copy of the appraisal report upon which the offer to the fee owner is based; copies, to the extent prepared, of the right-of-way maps or other documents that depict the proposed taking; and copies, to the extent prepared, of the construction plans that depict project improvements to be constructed on the property taken and improvements to be constructed adjacent to the remaining property, including, but not limited to, plan, profile, cross-section, drainage, pavement marking sheets, and driveway connection detail. The condemning authority shall provide any additional plan sheets within 15 days of request.
4. The business owner’s statutory rights under ss. 73.071, 73.091, and 73.092.
5. The business owner’s rights and responsibilities under paragraphs (b) and (c) and subsection (4).
(b) The notice must be made subsequent to or concurrent with the condemning authority’s making the written offer of compensation to the fee owner pursuant to subsection (1). The notice must be sent by certified mail, return receipt requested, to the address of the registered agent for the business located on the property to be acquired, or if no agent is registered, by certified mail or personal delivery to the address of the business located on the property to be acquired. Notice to one owner of a multiple ownership business constitutes notice to all business owners of that business. The return of the notice as undeliverable by the postal authorities constitutes compliance with these provisions. The condemning authority is not required to give notice to a person who acquires an interest in the business after the notice required by this section has been given. Once notice has been made to business owners under this subsection, the condemning authority may file a condemnation proceeding pursuant to chapter 73 or chapter 74 for the property identified in the notice.
(c) If the business qualifies for business damages pursuant to s. 73.071(3)(b) and the business intends to claim business damages, the business owner must, within 180 days after either receipt of the notice or the date the notice is returned as undeliverable by the postal authorities, or at a later time mutually agreed to by the condemning authority and the business owner, submit to the condemning authority a good faith written offer to settle any claims of business damage. The written offer must be sent to the condemning authority by certified mail, return receipt requested. Absent a showing of a good faith justification for the failure to submit a business damage offer within 180 days, the court must strike the business owner’s claim for business damages in any condemnation proceeding. If the court finds that the business owner has made a showing of a good faith justification for the failure to timely submit a business damage offer, the court shall grant the business owner up to 180 days within which to submit a business damage offer, which the condemning authority must respond to within 120 days.
1. The business damage offer must include an explanation of the nature, extent, and monetary amount of such damage and must be prepared by the owner, a certified public accountant, or a business damage expert familiar with the nature of the operations of the owner’s business. The business owner shall also provide to the condemning authority copies of the owner’s business records that substantiate the good faith offer to settle the business damage claim. If additional information is needed beyond data that may be obtained from business records existing at the time of the offer, the business owner and condemning authority may agree on a schedule for the submission of such information.
2. As used in this paragraph, the term “business records” includes, but is not limited to, copies of federal income tax returns, federal income tax withholding statements, federal miscellaneous income tax statements, state sales tax returns, balance sheets, profit and loss statements, and state corporate income tax returns for the 5 years preceding notification which are attributable to the business operation on the property to be acquired, and other records relied upon by the business owner that substantiate the business damage claim.
(d) Within 120 days after receipt of the good faith business damage offer and accompanying business records, the condemning authority must, by certified mail, accept or reject the business owner’s offer or make a counteroffer. Failure of the condemning authority to respond to the business damage offer, or rejection thereof pursuant to this section, must be deemed to be a counteroffer of zero dollars for purposes of subsequent application of s. 73.092(1).
(3) At any time in the presuit negotiation process, the parties may agree to submit the compensation or business damage claims to nonbinding mediation. The parties shall agree upon a mediator certified under s. 44.102. In the event that there is a settlement reached as a result of mediation or other mutually acceptable dispute resolution procedure, the agreement reached shall be in writing. The written agreement provided for in this section shall incorporate by reference the right-of-way maps, construction plans, or other documents related to the taking upon which the settlement is based. In the event of a settlement, both parties shall have the same legal rights that would have been available under law if the matter had been resolved through eminent domain proceedings in circuit court with the maps, plans, or other documents having been made a part of the record.
(4) If a settlement is reached between the condemning authority and a property or business owner prior to a lawsuit being filed, the property or business owner who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided in s. 73.091 and attorney’s fees in the same manner as provided in s. 73.092, more specifically as follows:
(a) Attorney’s fees for presuit negotiations under this section regarding the amount of compensation to be paid for the land, severance damages, and improvements must be calculated in the same manner as provided in s. 73.092(1) unless the parties otherwise agree.
(b) If business damages are recovered by the business owner based on the condemning authority accepting the business owner’s initial offer or the business owner accepting the condemning authority’s initial counteroffer, attorney’s fees must be calculated in accordance with s. 73.092(2), (3), (4), and (5) for the attorney’s time incurred in presentation of the business owner’s good faith offer under paragraph (2)(c). Otherwise, attorney’s fees for the award of business damages must be calculated as provided in s. 73.092(1), based on the difference between the final judgment or settlement of business damages and the counteroffer to the business owner’s offer by the condemning authority.
(c) Presuit costs must be presented, calculated, and awarded in the same manner as provided in s. 73.091, after submission by the business or property owner to the condemning authority of all appraisal reports, business damage reports, or other work products for which recovery is sought, and upon transfer of title of the real property by closing, upon payment of any amounts due for business damages, or upon final judgment.
(d) If the parties cannot agree on the amount of costs and attorney’s fees to be paid by the condemning authority, the business or property owner may file a complaint in the circuit court in the county in which the property is located to recover attorney’s fees and costs.
This shall only apply when the action is by the Department of Transportation, county, municipality, board, district, or other public body for the condemnation of a road right-of-way.
(5) Evidence of negotiations or of any written or oral statements used in mediation or negotiations between the parties under this section is inadmissible in any condemnation proceeding, except in a proceeding to determine reasonable costs and attorney’s fees.
Cited 3 times | Published | Florida 4th District Court of Appeal | 2006 WL 1154964
...One of the attachments to the petition was the taking resolution adopted August 5, 2003, which declared the public necessity for acquiring the parcels in question for construction of a drainage/retention pond. The city commission further authorized the city attorney to acquire the parcels. Section 73.015, Florida Statutes, provides, in relevant part: ....
...* * * Additionally, before an eminent domain proceeding is brought, the City must attempt to negotiate in good faith with the owner of the property to be acquired and must provide the owner with a written offer. This shall further serve as the City's written offer pursuant to Section 73.015, Florida Statutes....
...The trial court measured the award from the first letter containing the lower "offer." We agree with City that the second letter was the offer applicable to computing the benefit to Appellees under the statutory scheme. Section 73.092, Florida Statutes, provides, in part: (1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client....
...00 for their parcels, nor bound the city unless and until the contingencies set forth in the letters were satisfied. There is also nothing in the first letter amounting to a threat of a taking or indicating that it was incident to a proceeding under section 73.015....
...There is nothing in such a negotiation process that pressures the property owner to obtain litigation counsel prematurely. Ultimately, should the municipality elect to pursue eminent domain upon failure to acquire the property through negotiation, it is required by law to make the pre-suit offer pursuant to section 73.015....
Cited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 876418
....00. The letter instructed the appellees to execute the attached purchase agreement if they agreed to the offer, but also stated that the amount of the offer was subject to the JEA's approval. The letter further noted that it included "excerpts from section 73.015, Florida Statutes, that are applicable to the JEA acquisition of [the] property." On June 23, 2004, the JEA, this time on its own letterhead, mailed the appellees the third letter which further expanded the desired acreage of parcel 101 to 36.55 acres and offered $500,000 for both parcels....
...erty. We find that, upon receiving such a letter, reasonable property owners could conclude that the letter was more than an ordinary arm's length offer to purchase their property, but rather the initiation of presuit negotiations as contemplated by section 73.015, Florida Statutes....
...In Tosohatchee, the Florida Supreme Court held that a petition for condemnation must be accompanied by an authorizing resolution in order to properly institute eminent domain proceedings. However, unlike the instant case, Tosohatchee did not deal with an offer made pursuant section 73.015, Florida Statutes (2004), prior to the commencement of a condemnation action. Section 73.015 requires the JEA to make a good faith attempt to negotiate with the appellees prior to the commencement of a condemnation action, but does not require that a resolution be passed in order for the condemning authority to begin that negotiation or extend a binding offer....
...The owner did not accept the offer, and no further action was taken on the unexecut-ed contract. In 2006, the government mailed a pre-suit notification letter via U.S. Certified Mail, making an offer in the amount of $62,500. The letter contained no contingencies and was compliant with the mandates of section 73.015, Florida Statutes (2008)....
...ich we have de novo review. See Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011). The calculation of attorney’s fees under section 73.092 uses a benefits approach. The statute provides in part: (1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client....
...he government to avoid litigation. The government argues that the unexe-cuted contract cannot be the first written offer because it is more like an option contract. Instead, the government argues the letter, prepared and delivered in compliance with section 73.015, was the first *1037 written offer upon which the attorney’s fees calculation should be based....
...In Janots , we were required to look at two letters to determine which constituted the first written offer. Id. at 1099-1100 . The first letter was expressly contingent upon approval by the city commission. Id. at 1101-02 . The second letter, which referenced section 73.015, indicated the commission had already approved the acquisition....
...Because the government did not become obligated upon acceptance by the owner, the unexecuted contract was not the first written offer for the purpose of calculating attorney’s fees. Id. The last letter sent by certified mail to the owner, in accordance with section 73.015, expressed the government’s offer to purchase the property in certain, definite terms; was immediately binding upon the owner’s acceptance; and, contained no contingencies....
...’s fees using the certified letter as the date from which to calculate the benefit achieved. Reversed and Remanded. WARNER and POLEN, JJ., concur. . We will refer to the Pompano Beach Redevelopment Agency as the government for ease of reference. . Section 73.015 requires a condemning authority to negotiate in good faith with the property owner before initiating an eminent domain proceeding....
Cited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21819032
...to parcels RHB 104.000 and RHB 105.000. Because FGTC is not entitled to use the quick-take provisions of chapter 74, we reverse. The appellants also challenge the trial court's conclusion that FGTC's pre-suit offer of compensation, made pursuant to section 73.015, Florida Statutes (2001), was valid....
...tion of the proceedings. 6 OOCEA argues that Landowners should have been limited to an award of attorney’s fees pursuant to subsection (1) of section 73.092. The statute instructs the court that, “except as otherwise provided in this section and section 73.015,” the sole factor to consider in awarding fees in an eminent domain proceeding is the “benefits achieved” for the client....
...ffer to Landowners for the entire fee, and that the statute cannot be construed to require it to separately state the interests of each individual condemnee, as this conflicts with the pre-suit offer requirements imposed on condemning authorities by section 73.015, Florida Statutes (2006)....
...the property. Landowners agree that the offer in this case was a “unified” offer for the entire fee, despite the limiting language that it was subject to apportionment. As such, Landowners contend that the offer did not meet the requirements of section 73.015, which requires the condemning authority to “provide a written offer of compensation to the fee owner as to the value of the property sought to be appropriated .... ” § 7S.015(l)(b), Fla. Stat. In opposition to Florida’s “unity rule,” Landowners insist that the offer required by section 73.015(l)(b) is an offer for the value of the fee owner’s interest, exclusive of the leasehold or other interests of third parties in the fee....
...They insist that because of the failure to specify a dollar amount for the Landowners’ interests, as distinguishable from those of Florida Container, the “benefits achieved” by Landowners in the valuation proceedings cannot be calculated, precluding a fee award pursuant to section 73.092(1). We reject the argument that section 73.015, the pre-suit offer statute, contemplates a separate offer to a fee owner for the value of his or her property excluding other interests....
...Allen, 447 So.2d at 1385-86 ; accord Porter v. Columbia Cnty., 75 So.2d 699 (Fla.1954); see also Carter v. State Rd. Dep’t, 189 So.2d 793 , 794 n. 1 (Fla.1966) (stating a leasehold is encompassed within property being appropriated and must be included in valuing the property as a whole). Section 73.015 was added to the eminent domain statutes in 1999 as part of a legislative overhaul of the eminent domain process and appears to be consistent with the unity rule....
...(effective Jan. 1, 2000). It requires the condemning authority to “negotiate in good faith with the fee owner of the parcel to be acquired,” and to make an “attempt to reach an agreement concerning the amount of compensation to be paid for the parcel.” § 73.015(1), Fla. Stat. (emphasis added). Among other things, it requires the condemning authority to “provide a written offer of compensation to the fee owner as to the value of the property sought to be appropriated.” § 73.015(l)(b), Fla....
...ny event, condemning authority had made substantial changes to the construction plans and design, which decreased the scope of the taking, thereby reducing the amount awarded to landowner at trial). . Of course, the "unified” offer contemplated by section 73.015 is addressed only to "fee holders,” and not to those with possessory interests, such as tenants, and therefore serves as a "written offer” only to the fee holders....
...WNER TO PURSUE A FEE UNDER SECTION 73.092(2)? REVERSED AND REMANDED; QUESTION CERTIFIED. TORPY, C.J., GRIFFIN and EVANDER, JJ., concur. . The legislature apparently reacted to the court’s concern by revising the statute in 1999 with the passage of section 73.015, Florida Statutes (2000)....
...must pay the property owner’s attorney’s fees. § 73.091, Fla. Stat. (2012).
Before seeking to acquire property through eminent domain power, the
condemning authority is required by statute to “attempt to negotiate in
good faith” with a property owner. § 73.015(1), Fla....
...The award of fees in an eminent domain proceeding is
tied to the amount offered to purchase the property by the condemning
authority prior to suit being filed.
Section 73.092, Florida Statutes (2012), details the method for
calculation of fees:
(1) Except as otherwise provided in this section and s. 73.015,
1 The $800,000 amount included an award for two other parcels as well, but the
motion for attorney’s fees and computation of attorney’s fees by the trial court
referenced only parcel 192, and not the other parcels....
...f our last
letter to you.
(bold emphasis added).
The trial court properly found that the March 2005 offer was made
under the EAP as an attempt to acquire the property in an arms-length
transaction, rather than a presuit offer pursuant to section 73.015....
...The
trial court also properly found that the offer was extended on the condition
that it would not be used against DOT as a basis for attorney’s fees in the
event it was necessary to acquire parcel 192 through eminent domain
proceedings. There was competent substantial evidence to support both
findings.
Section 73.015(1)(a)1., requires that a presuit offer be made prior to
eminent domain proceedings after it is determined that “all or a portion of
[the owner’s] property is necessary for a project.” (emphasis added)....
...*254 Section 73.092 contains two different methods of determining attorney’s fees in eminent domain proceedings. Section 73.092(1) provides that attorney’s fees must be calculated based upon benefits achieved: (1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client....
...ther with and in harmony with any other statute relating to the same subject matter or having the same purpose, even though the statutes were not enacted at the same time.” Garner v. Ward, 251 So.2d 252, 255 (Fla.1971). Section 73.092(1) refers to 73.015, which provides further context for what constitutes a written offer. Section 73.015 requires presuit negotiations for any condemnation proceeding. Prior to the institution of condemnation proceedings, the condemning authority must provide the fee owner with a “written offer” and, if requested, a copy of the appraisal. § 73.015(1), Fla....
...In addition, no later than the written offer, the condemning authority must notify the *255 owner of various requirements, including the nature of the project for which the taking is considered necessary and the fee owner’s statutory rights under section 73.091 and 73.092. § 73.015(l)(a), Fla. Stat. (2009). The notice and written offer must be sent by registered mail or personally delivered to the owner. § 73.015(l)(c), Fla....
...e condemnation. The letters made no mention of the homeowners’ rights to attorney’s fees and the limitations of section 73.092. This would have alerted them that their right to attorney’s fees would be limited to the *256 benefits obtained, as section 73.015 requires the condemning authority to advise the property owner. See § 73.015(l)(a)4., Fla....
...We write only to express our views on the Department’s duty to negotiate in good faith with the fee owners prior to bringing an eminent domain proceeding. The Department’s duty to negotiate in good faith prior to bringing an eminent domain proceeding is set forth in section 73.015(1), Florida Statutes (2001). That section requires that the Department “must attempt to negotiate in good faith with the fee owner of the parcel to be acquired ... and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.” § 73.015(1). In this case, it is undisputed that the Department sent out, and the appellants received, two written offers that complied with section 73.015. The appellants neglected to respond to the offers, and the Department filed suit after waiting the requisite thirty days under the statute. See § 73.015(l)(b)....
...nment and that they should hire an attorney. The County's June 2006 letter also referenced an attached brochure entitled "The Real Estate Acquisition Process." The brochure referenced various attorney fee provisions in chapter 73, including sections 73.015 and 73.092, Florida Statutes, which, along with the letter, "clearly invite[d] the property owners to make offers to settle the compensation issues pre-suit with assurances that the costs of preparation of the experts' reports" would be the County's responsibility....
...less expressly authorized by a statute, rule or contract. Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 97 (Fla. 2000). Chapter 73, Florida Statutes, governing eminent domain actions in Florida, provides for attorney's fee awards in three sections: 73.015, 73.091 and 73.092. Section 73.015(4) states, in pertinent part: If a settlement is reached between the condemning authority and a property or business owner prior to a lawsuit being filed, the property or business owner who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided in s. 73.091 and attorney's fees in the same manner as provided in s. 73.092,.... (Emphasis added). Thus, section 73.015(4) expressly authorizes an award of attorney's fees and costs to landowners only when "settlement is reached ... prior to a [condemnation] lawsuit being filed." Here, Appellants allege that no pre-suit settlement occurred. Thus, section 73.015(4), by its plain language, does not authorize a recovery in this case....
...In 1999, the legislature added a statutory provision extending presuit negotiation requirements to all condemning authorities which appears to alleviate our concerns regarding the constitutional application of section 73.092. See ch. 99-385, § 57, Laws of Fla.; § 73.015, Fla....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
