Photo of Carlos Kelly

Carlos focuses his practice on real estate disputes (sales and purchase disputes, foreclosures, title insurance litigation, commercial and residential evictions, and other real estate related claims) and business claims (fraud and contract lawsuits, shareholder disputes, and other claims between business partners). A major part of his real estate litigation practice involves eminent domain/condemnation matters, which have included inverse condemnation and Bert J. Harris, Jr., Private Property Rights Protection Act claims.

In addition to being admitted to all Florida state courts, Carlos is admitted to practice in the U.S. District Court for the Middle and Southern Districts of Florida.

Carlos speaks and writes for a variety of audiences, including the firm's Legal Scoop on Southwest Florida Real Estate blog. The Florida Bar’s Eminent Domain Committee, The Florida Bar's City, County & Local Government Section, and the Florida Association of County Engineers & Road Superintendents have featured Carlos as a lecturer on eminent domain topics, and the West Coast Florida Chapter of the Appraisal Institute has featured Carlos as a panel speaker on witness preparation in eminent domain cases. The American Bar Association published an article Carlos wrote about the use of eminent domain to condemn underwater mortgages (December 10, 2012 web post). The Florida Bar Journal has published several of Carlos's articles, including two that he wrote about eminent domain topics.  The Supreme Court of Florida cited his article, “Eminent Domain: Identifying Issues in Damages for the General Practitioner,” in System Components Corp. v. Florida Dept. of Transportation, 14 So.3d 967 (Fla. 2009). Carlos is AV rated by Martindale-Hubbell

Recently, I attended the 65th running of the Twelve Hours of Sebring, the world-famous endurance race for sports cars. Past winners include Mario Andretti and A.J. Foyt, among other giants of auto racing.

This was my first time to the Twelve Hours of Sebring race. WOW!! The sound of that many high-performance motors was incredible and incredibly loud, even with my noise-canceling headphones.

Four classes of sports cars ran in the Twelve Hours of Sebring 2017, but I watched the GT Le Mans class the closest because the cars were very recognizable:  two Corvettes, two BMW M6s, a Ferrari 488, three Ford GTs, and two Porsche 911s. The Hairpin, the most famous turn at Sebring, appeared to be the most challenging spot for the drivers: hard braking, followed by hard acceleration, with drivers trying to pass and avoid getting passed. Here are the two Porsches dueling:

The No. 66 Ford GT held the lead in the GT Le Mans class for a portion of the race, and was leading when my dad and I left the race just after sundown. I made it home in time to watch the last ten minutes of the race. Much to my surprise, the No. 3 Corvette won the GT Le Mans class. WOW!!

Now, how does this apply to your property rights? The answer: Never Give Up.

The government wants your property? Never Give Up. The government isn’t offering what your property is worth? Never Give Up. The government has taken your property? Never Give Up.

P.S. If you go to the next Twelve Hours of Sebring race, you’ll need tickets, a big hat, sunblock, lots of water, snacks, headphones, sunglasses, beach chairs, shoes you can walk long distances in, hand sanitizer, and your smartphone (so you can take pictures and watch the race on TV to see what’s happening on other portions of the track),

diamond-158431_1280In the film “Snatch,” made by British director Guy Ritchie (former husband of Madonna), there are a lot of moving parts: an 86 karat diamond, an underground boxing match, a robbery gone awry, a chew toy eaten by a dog, and a host of characters from London’s underworld bearing unusual names like Turkish, Brick Top, Boris the Blade, and Bullet Tooth Tony, among others. The two parallel plots, the journey of the 86 karat diamond around London’s underworld and an unlicensed bare-knuckle fight, come together near the end of the film. It’s a great movie but it takes a lot of concentration to follow all the action.

As a business or property owner, you may be confronted by a government project seeking all or a portion of your property. When this happens, you will receive a written notice from the government agency, and it might have a lot of moving parts. The notice will likely contain several sections of the Florida Statutes, as well as other materials, such as sketches of the areas the government agency proposes to take or the facilities the government agency wants to install on your property.

But you have an advantage:  you can hire a lawyer to help you sort out the moving parts and protect your property rights. With your lawyer’s counsel, you can decide whether to challenge the proposed taking or the government’s valuation. Keep your eye on the prize whether it’s your home, investment property, or business…or an 86 karat diamond.

Please feel free to contact me with any questions at carlos.kelly@henlaw.com or by phone at 239-344-1326.

Property Rights Flickr Kax VorpalLast week, I posted video about oral argument heard by the Florida Supreme Court regarding the Bert J. Harris, Jr., Private Property Rights Protection Act, which “provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property,” as it is put in the statute.

Let’s dig deeper.

The Florida Supreme Court will have to resolve the conflict between two intermediate appellate courts over whether a property owner has a valid claim under the Bert Harris Act if governmental action is against a neighboring property, rather than the property owner’s property.

In the FINR II, Inc. v. Hardee County case, the Second District Court of Appeal (which includes counties on the west coast, including Charlotte County, Collier County, and Lee County) said “owners of real property that [have] been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property” have a claim under the Bert Harris Act.

In the City of Jacksonville  v. Smith case, however, the First District Court of Appeal (which includes counties in north Florida from Escambia to Nassau) said the Bert Harris “Act simply does not apply where, as here, the … property was not itself subject to any governmental regulatory action.”

I predicted the Florida Supreme Court would resolve this conflict this year.  Stay tuned.

Photo courtesy of Kaz Vorpal under Flickr Creative Commons License

cakI grew up out West. A big part of growing up in the West, at least in my family, included Western films. Westerns, like many country music songs, can tell a complicated story in regular, everyday terms. Black cowboy hats and white cowboy hats made it easy to figure out who was on what side!

Probably my favorite Western was The Magnificent Seven. That’s the 1960 version, not the 2016 re-make. The 1960 version tells the tale of seven adventurers, hired by Mexican villagers to protect their community from a bandit, Calvera.  Played by Eli Wallach, Calvera is one of the most fascinating villains in a Western.  Watch this scene where Calvera and his men meet The Magnificent Seven for the first time…his smug contempt comes across loud and clear when he shouts “Do you hear that? We’re trapped, all 40 of us, by these three.” Later, Calvera explains how “easy” he makes it for the villagers:  “With me, only one decision.  Do what I say!”

Sound familiar?  If you are a property owner who has received a notice from a governmental authority that your property is needed for a government project, this might sound way too familiar. But you may want more than one choice. You may not want to do what they say.

Article X, Section 6 of Florida’s Constitution puts some power in your hands. On the subject of eminent domain, Section 6(a) of the Florida Constitution says:

No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

Make sure you talk to a lawyer if you receive a notice that someone else wants your property for a project.  Give yourself more than the choice to do what they say.

Please feel free to contact me with any questions or concerns at carlos.kelly@henlaw.com or by phone at 239-344-1326.

As usual, the year has flown by and the New Year is upon us. You might remember from my last post, that we took a Christmas-flavored look at takings with St. Nick. Now it’s time to look ahead. When my wife and I were walking in a local nature preserve on Christmas Day, I took a picture of a fantastic tree that I named the “Animals’ Staircase.”

As you can see, the Animals’ Staircase ascends gradually and then with increasing steepness.  It was easy to picture a small animal running up the Staircase to get a better view of something.

Continue Reading Looking Ahead to 2017 in Takings Law

photoIf the sounds of Christmas music bring feelings of goodwill toward all, family gatherings, Yuletide blessings, you’re not alone. Personally, I always make it an Elvis Christmas, rolling through the same ten Elvis songs for days at a time. Ho ho ho and thank you, thank you very much!

But let’s think of Santa, not just as a bringer of gifts, but as a user of property rights. After all, he lands on your roof. Get any permission for that, Mr. Claus?  What about the wear and tear to the roof?  If a typical adult male reindeer weighs 350 – 400 pounds, eight adult reindeer could weigh 2,800 – 3,200 pounds—over a ton.  Can your roof support that?  (This isn’t even including Rudolph, the sleigh, or Santa himself, who is no reed, weight-wise, according to a number of reports.)

Continue Reading Santa Claus is Back in Town and Make Sure He Pays This Time

Denzel_Washington_2013In the 1980s, the television show The Equalizer told the story of a trouble-shooter who assisted people in over their heads, with long odds.  Denzel Washington brought the role to the big screen in 2014.  If you’re a property owner, you might need to have things equalized, too, by using a law written to assist property owners.

Think about it.  You’ve put, maybe, your life savings, or retirement money, into a piece of vacant land.  You’ve done your homework.  You’ve found out the comprehensive plan and the  zoning will allow you to open a restaurant, your own neighborhood bar and grill.  You buy the land, submit a development plan, apply for and obtain the necessary permits, and break ground on construction.  Half-way through your project, you get the news that local government has changed its comprehensive plan and re-zoned your property, mentioning it specifically in the new ordinance.  No commercial uses.  No grandfather clause.

Not good.

Continue Reading Equalizing the Odds

Property Rights Flickr Kax VorpalLet’s take these in reverse order.

Do you own real estate?

If the answer is “Yes,” then you should care because you, as a property owner, hold a number of property rights, known as a “bundle of sticks.” If the government, or a private entity with the power of condemnation, infringes on one or more of your property rights, then you may have a claim for inverse condemnation, if certain other factors are met.

What is “inverse condemnation?”

Continue Reading What is Inverse Condemnation and Why Should You Care?

8293998585_d02b699ef7_q.jpgReader demand brings you this update. Since our last update much has taken place. The design phase of the Colonial/Lee Boulevard to Shawnee Road segment is scheduled (estimated) to be completed in one year—July 2017. The project schedule that FDOT posted earlier this year shows that construction will begin in fall 2017 and that construction on this segment should be completed in roughly 2020.

If you really want a deep dive into the State Road 82 widening project, see the entire Project Development and Environment Study here. The News-Press provided a summary in March 2016.

If you have any questions about eminent domain, please see my post of March 22, 2016, or feel free to contact me directly at carlos.kelly@henlaw.com.

Objection. Compound question.

But the answers are:

  • A phrase used to describe rights in real property; and
  • Because the bundle of sticks is valuable and each of the individual sticks has value.

I first heard about the “bundle of sticks” when I was at law school. My property professor talked about the bundle of sticks when describing the variety of rights that a property owner has:  rights to what’s underground, rights to the ground, rights to the air. I didn’t appreciate the usefulness of the concept until I’d been practicing as a dirt litigator—sorry, real estate litigator—for several years.

Each stick represents a different property right, and depending on the words in the deed or other document by which you acquire title, you may be entitled to exercise all, or only some, of the rights associated with a piece of real estate.

Now why is this important? The amount you pay for a piece of property may vary depending on what rights—sticks—are present and what rights have been retained by the grantor/seller. For example, the grantor/seller might retain the right to extract minerals. You don’t have the entire bundle of sticks and your property could, conceivably, be worth less as a result.

So when buying real estate, be sure to find out if you’re getting the entire bundle of sticks. And when you own property, beware when the government, or a private company with the power of eminent domain, wants to take one of your rights. Don’t let them “stick” it to you.

 

Image courtesy of Oliver Schöndorfer under Flickr Creative Commons License