Florida is one of the only states in the U.S. that has a statute that gives a cause of action to a property owner when the state or local government takes an action that reduces the value of a property. This occurs by interfering with an existing use or a vested right without that government action rising to the level of a taking. The statute that creates this cause of action is known as the Bert Harris Private Property Act (chapter 70 of the Florida Statutes).
Under Florida law, a taking only occurs when there is a physical invasion of the land or the government causes a loss of all economically viable use. The reduction in the property value must come from an inordinate burden placed on an existing use or vested right of the property that causes the property owner to be unable to obtain the reasonable investment-backed expectations for the existing use or vested right.
The Claim
First, the Bert Harris claim must be presented to the governmental entity within one year of the claim after the law or regulation is first applied to the property at issue. The statute states that the one year claim period begins running either when the law or regulation is first applied when enacted if the application and impact to the property at issue is clear and unequivocal in its terms and notice is provided via mail to the affected property owner or when there is a formal denial of a written request for development or variance. After the claim is made, the Florida courts have determined that the four-year “catch all” statute of limitations applies to the filing of the Bert Harris case itself in the court system. This means that a Bert Harris claim has to be filed within four years of the claim being made upon the government, but the claim must be made within one year of its accrual.
The Process
The statute lays out the process that needs to be followed for making a claim. Notice Intent to file the claim must first be given to the governmental entity along with a valid and bona fide appraisal supporting the claim. Case law has suggested that the appraisal should make it easy and understandable for the governmental entity to see the damages caused by their claim so that the governmental entity can make the settlement offer as required by the Act.
After the governmental entity receives the notice, they have 150 days, or 90 days if it is an agricultural property, to submit a settlement offer to the property owner. The government has a litany of options of how to present a settlement including retracting its action, modifying its action, purchasing the property at issue, providing compensation to the property owner in addition to a number of other options.
If the settlement offer is not accepted by the property owner, then the government must provide the property owner with a list of allowable uses of the property within the 150 (or 90 if agricultural) day period. This statement of allowable uses is a written decision by the government which shows how the property may be used. If the property owner rejects the statement of allowable uses and the proposed settlement agreement issued by the governmental entity, then a lawsuit may be filed in the Circuit Court in the county in which the property is located.
The Trial
There are two stages of trial in a Bert Harris claim. There is a bench trial for the liability stage and if liability is determined, then there is a jury trial to determine the damages amount. In order to prevail at the liability stage, the property owner must prove that the existing use of the real property or a vested right to a specific use existed and that the governmental entity has inordinately burdened the real property. At the damages stage, the jury determines the total amount of compensation for the loss of value.
The above is a simplified explanation of the Bert Harris Act. If you are a property owner who has questions about the Act or how a government regulation or action has or will affect the value of your property, please do not hesitate to contact me.
