An owner’s rights in their property are often described as a bundle of sticks. As long as the owner holds the entire bundle, they enjoy all rights to the property. However, the owner has the ability to transfer any of these component rights to others; examples would include the right to occupy the property (leasehold), the right to cross the property (access easement), or the right to any subsurface minerals on the property (deed of mineral rights). In the free market, an owner would negotiate with a transferee to establish mutually agreeable compensation for the rights transferred. However, an entity with the power of eminent domain in Florida can also force the transfer of any rights or combination of rights in your property, upon a property showing in court and the payment of full compensation. It is therefore important to understand the impacts on your property of the taking of different types of rights.
The most straightforward type of taking is of course the taking of a fee simple interest in all or a portion of your property. A fee simple taking means that the condemning authority acquires all of the rights in the portion of your property they are taking. That includes not only legal title to the land itself but also the right to occupy or otherwise make use of the land, the right to any improvements located on the land, and the right to any minerals under the land.
There are many times, however, when the condemning authority is not seeking all of the rights in your property. In order to acquire property through eminent domain, the condemning authority must be able to demonstrate that it is taking the smallest amount of land, and the least intrusive interest in land, that is necessary for its project. This means that if the condemning authority can accomplish its goals by taking less than a fee simple interest, it is required to do so. For instance, a perpetual easement may be sufficient when the condemning authority needs to run drainage across your property, or a utility company needs to run above-ground power lines or underground transmission pipes across your land.
Learning that a condemning authority is taking less than a fee simple interest in your property may seem like good news, but other types of takings can have profound impacts on your ability to use and develop your property as well. For instance, takings for drainage easements to accommodate runoff from new or widened roadways are typically valued even by condemning authorities at 85% to 90% of their estimate of fee value, the reason being that the remaining uses left to property owner are very limited. There is not much that a property owner can do with land encumbered by a drainage easement, as any type of improvement or development of that area would potentially interfere with the operation of the drainage facility and the condemning authority’s superior drainage rights. And, of course, losing the ability to develop the portion of your property encumbered with the drainage easement could in turn defeat any development plans for your unencumbered property as well, depending on the overall size of your property and the relative sizes of the encumbered and unencumbered land. Perpetual easements are also commonly acquired by utility companies for transmission lines and pipes. See our June 24, 2025 blog post “Eminent Domain for Utility Projects: What You Should Know”.
The condemning authority can also seek temporary easements, that expire after a specific period of time. In the context of a road widening project, these can be for the purpose of harmonizing your property, in particular driveway connections, with the new roadway, especially if there has been a change in the elevation of the road in front of your property. While this intention appears benign, and the proposed acquisitions are often accompanied by assurances from the condemning authority that the work will be only days or weeks in duration, the fact is that these “temporary” easement can often be sought for a period of five, six or even seven years, to give the condemning authority maximum flexibility in the scheduling of the actual construction of its project. A temporary easement for seven years gives the condemning authority the right to perform construction on your property in the easement area for the full seven years unless limitations on this unfettered right are negotiated. For instance, the owner of a commercial property might seek to negotiate a requirement that work be performed only outside of the regular business hours of its tenant and to limit the total duration of the construction. Needless to say, the consequences of multiple years of disruption to a site’s commercial driveways would be dire.
The above are only a few, though common, examples. Since every property is unique, and a condemning authority can take any combination of rights in your property, it is important to obtain the assistance of an experienced eminent domain attorney and other professionals, potentially including engineers, land planners and appraisers, to assess impacts to your property from any specific proposed takings. In all types of takings, you are entitled to compensation not only for the value of the property actually taken in fee simple or encumbered by an easement, but also any damages experienced by the remainder property as a result of the taking.
Contact us today to speak with one of our attorneys if you are facing the potential loss of your property rights through eminent domain. All property owner eminent domain attorneys fees and expert costs are paid by the condemning authority; there is no cost to you for retaining an attorney for your eminent domain matter.