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.”
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.
If 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.)
In 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.
Let’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?”
Reader 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.
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
- You’re entitled to an appraiser. This is vital. You want to have your own expert to provide you with an opinion on what your property sought by the condemning authority is worth. In some circumstances, the condemning authority may be responsible for paying your reasonable appraiser costs.
- You’re entitled to the construction plans. This, too, is vital. You’ll need to know precisely what is planned for the property the condemning authority wants to take (for example, the installation of utility lines, roads, sidewalks, and other structures) AND you’ll need to know where the condemning authority plans to put its infrastructure (above-ground, below-ground, or in the air). You may need to hire an engineer in order to review the plans, which takes us to the third thing you need to know about condemnation right now.
- You’re entitled to a lawyer. This is the most important thing to know. Your lawyer should be familiar with the condemnation statutes and case law and should know a number of appraisers, engineers, and other professionals who can help you maximize your damages claim for your property sought by the condemning authority. The condemning authority is responsible for paying attorney fees, as set forth in Florida Statutes Section 73.092.
Know your rights. If you have any questions or concerns on condemnation, please feel free to reach out to me at email@example.com.
A good place to start is our collection of previous blog posts on various types of liens. The answer is “Maybe.” Did you perform labor, provide services, or sell materials used on a construction job? If the answer is “Yes,” and you meet some other requirements, then you may be able to record a claim of lien.
Circumstances for Lien
In most other circumstances, however, you don’t have a pre-judgment right to record a lien against real property owned by someone who owes you money. But, even if you cannot record a lien against someone right now, you may have other options. Keep in mind that a lien is merely a right to look to property as security for a debt. You may still obtain relief against someone who owes you money if you have a valid basis on which to sue, such as a promissory note, an unpaid account, or a purchase/sale contract, and the statute of limitations has not expired. In many circumstances, a lien may only be important if a debtor has no liquid resources to pay a judgment.
On October 1, 2015, various revisions to the Bert J. Harris, Jr., Private Property Rights Act will take effect. On October 1, among other things, the definitions of “property owner” and “real property” will change as set forth in Chapter 2015-142 Laws of Florida. The changes may limit the reach of the Second District Court of Appeal’s decision that expanded the rights of property owners in Southwest Florida since “property owner” will mean “the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity.” The FINR II, Inc. v. Hardee County decision held that the Bert Harris Act provided a cause of action to owners of real property “inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” With the change in definition effective October 1, it seems the impact of the FINR II decision may be short-lived.
We’ll be sure to keep you updated!
The Second District Court of Appeal, which covers fourteen counties in West Central Florida and Southwest Florida from Pasco County in the north to Collier County in the south, issued a decision in June 2015 that significantly expands the rights of real property owners in Southwest Florida. In the case entitled FINR II, Inc. v. Hardee County, the appellate court ruled that
the Bert [J.] Harris [, Jr., Private Property Rights Protection] Act provides a cause of action to owners of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” (Emphasis added.)
Facts of the Case