Transfer of Title and Possession
When will I be required to give up my property?
There are a number of ways the date for surrender of possession may be determined. In no event will an owner be required to surrender possession of his property until (a) he agrees to a certain date, or (b) the judge sets a date.
The date for surrender of possession is determined in different manners depending on whether the acquisition is accomplished by a sale of the property in lieu of condemnation, or by a court order of taking.
If the owner sells his property to the condemning authority, then the owner and the condemning authority will agree upon a mutually acceptable date for surrender of possession. This mutually agreeable date is usually arrived at through negotiations. The owner typically indicates the time he needs to conclude business at the condemned property and relocate to a new site. The condemning authority typically indicates the time it needs to take over the property and demolish the buildings so as to meet its construction timetable. The owner and the state usually negotiate a date to surrender possession which meets both parties’ objectives.
If the owner does not sell his property to the state, and the state acquires it through a court order of taking, then the judge usually determines the date upon which the owner is required to surrender possession. The judge will make this determination after hearing evidence on the condemning authority’s and the owner’s needs.
Are there any disadvantages in getting the latest possible date to vacate my property?
Yes, there may be. The state often condemns several properties as part of a larger project. Owners who remain in possession of their properties after others have vacated often experience burglaries and vandalism. This is because areas in which properties are condemned may lack the security of occupied properties.
There is another reason why it may be disadvantageous to remain in possession as long as possible. If the state "quick takes" your property, that is, takes your property prior to the end of the case, the amount of interest to which you may be entitled may be less if you remain in possession.
In a “quick taking” case, an owner receives the state’s estimate of value when the court enters an order of taking. At the end of the case, if the jury awards a greater amount, the owner receives not only the difference between the final award and the “order of taking” estimate, but also interest on the difference between the final award and the “order of taking” estimate. This interest begins to run from the date at which the owner surrenders possession of the property to the condemning authority. The owner will thus receive a higher amount of interest if he surrenders possession of his property at an earlier date.
How does the State become the owner of my property?
One of three ways.
- You can sell the state your property. If you do this, the state takes title by deed.
- By an order of taking, if the condemnation is a quick taking. In this type of proceeding, title transfers upon the state’s deposit of its estimate of value into the court registry.
- By a final judgment after a jury trial, if the condemnation is a slow taking. In this type of proceeding, title transfers upon the state’s deposit of the jury award into the court registry.
What is the difference between a "quick taking" and a "slow taking?"
In a "quick taking" case, the condemning authority takes title to the property early in the case, before the final amount of compensation is determined. The state typically uses this method when it knows that it must proceed with the project and it needs the property to meet construction deadlines.
The "quick taking" method is typically used in condemnations for roads, schools and utilities. If a condemning authority has the power to "quick take" a certain property, it files a declaration of taking, which sets forth the condemning authority’s estimate of value. If the court allows the taking, the condemning authority will then deposit into the court registry the government’s estimate of value, and those funds will become available for withdrawal by appropriate parties (the owner, mortgagees, lien holders, etc.). In a "quick taking" case, title to the property passes to the state on the date it deposits its estimate to the court registry. The date of deposit of the funds becomes the "date of valuation" for the property at the trial.
In "slow taking" cases, the condemning authority does not decide whether to take title to the property until after the jury determines the amount of compensation required. In "slow taking" cases, the condemning authority is not required to take the property even after the jury determines the appropriate amount of compensation to be paid. The state may utilize the slow taking method to condemn property for parks or to preserve environmentally sensitive properties or in other instances where the price may affect their decision. If, after the trial, the condemning authority decides to take the property, it will deposit the amount of the award into the court registry, and title will pass to the government as of that date. If, after the trial, the condemning authority, decides not to take the property, then it will simply decline to deposit the funds, in which case title remains with the owner.
If the "slow taking" case is in a Florida state court, as opposed to federal court, then the condemning authority is responsible to pay the owner’s reasonable costs and attorney’s fees, even if the condemning authority decides not to take the property.
In a “quick taking” case in which the final award is greater than the amount originally deposited by the state, am I entitled to interest on the difference between the final award and the original estimate?
Only in cases is which the compensation is determined by a jury verdict. If the jury award is greater than the amount originally deposited by the state, the owner is not only entitled to the difference between the final award and the original estimate, but is also entitled to interest on that difference, between the date of surrender of possession and the date on which the final award is deposited into the court registry.
If your case is resolved through settlement and not a jury verdict, you are not entitled to interest on top of the settlement amount. If you feel that your settlement should include consideration of the delay in payment, you should take that matter into consideration in making or considering settlement offers.
If I am entitled to interest, how is the interest rate determined?
The interest rate is determined by statute and varies from year to year.
After the Court enters an Order of Taking, how do I get my money?
Your attorneys will file a motion and schedule a hearing. The motion will ask the court for permission to withdraw the money and disburse it to you, as the owner. The motion and notice of hearing will be sent to all parties who have an interest in your property (mortgagees, tenants, lien holders, etc.).
At the hearing, anyone who has an interest in the property may make a claim to the funds deposited by the condemning authority. If all of the property is taken, the court will generally pay all outstanding mortgage balances first. Prorated real estate taxes and special assessments are also deducted and paid to the appropriate officials before the owner’s balance is determined and disbursed.
In a small number of cases, usually involving complicated business property, the court will order the funds to be placed in a joint interest-bearing account. This situation arises when it is impossible for the court to make a precise apportionment of the Order of Taking deposit at the outset of the case, and is usually found in cases in which the owner, tenant and subtenant are unable to agree on their respective apportionment shares. In cases in which joint interest-bearing accounts are established, the funds are disbursed to the parties at the conclusion of the case, after the court enters a final order of apportionment or earlier, if the parties are able to reach a settlement amongst themselves.
If I withdraw the money which the State deposits in the court registry, will I be able to ask for more at the trial?
Yes. Your withdrawal of the Order of Taking funds is without prejudice to your final claim. This means that neither the amount of the state’s deposit, nor the fact that you use it during the case can be used against you in the trial.
Can my final award be less than the amount the condemning authority deposits pursuant to the Order of Taking?
Yes. The fact that the state makes an estimate for the Order of Taking does not preclude it from asserting a lower value at trial.