We often discuss that attorneys’ fees are a necessary component of constitutional just compensation, especially when the condemnor excessively litigates, delays, and attempts to prevent the property owner from obtaining just compensation. See New York Eminent Domain Procedure Law (“EDPL”) § 701; see also General Crushed Stone Co. v. State of New York, 93 N.Y.2d 23 (1999); Hakes v. State of New York, 81 N.Y.2d 392 (1993).
On November 5, 2015, Florida’s highest court reiterated this fundamental necessity and held that “when a condemning authority engages in tactics that cause excessive litigation, [the Florida state law concerning what the court should consider when assessing attorney’s fees incurred in defeating an order of taking] shall be used separately and additionally to calculate a reasonable attorney’s fee for the hours expended which are attributable to defending against the excessive litigation or actions.” Doerr Trust v. Cent. Fla. Expressway Auth., 2015 Fla. LEXIS 2476 at 23 (Fla. 2015).
In other words, a condemnor is liable for reasonable attorneys’ fees under Florida statute – and not limited to the state’s otherwise statutory restricted calculations – when it is responsible for excessive litigation.
It seems that excessive litigation by a condemnor is not a condition that solely plagues property owners in New York State.
The Supreme Court of Florida stated that reasonable attorneys’ fees are a necessary and constitutionally protected component of just compensation. Id. at 12.
“[T]he goal is to render the private property owner as whole as possible because: the owner of private property sought to be condemned is forced into court by one to whom he owes no obligation, and it cannot be said that he has received “just compensation” for his property if he is compelled to pay out of his own pocket the expenses of establishing the fair value of the property, which expenses in some cases could conceivably exceed such value.” Id. at 12-13 (citation and quotations omitted) (emphasis in original).
It is notable that the Supreme Court of Florida quoted the New York State Appellate Division, Second Department, in supporting this proposition and illustrating the “plight of the land owner in this situation[.]” Id. (citation omitted).
The cited Second Department stated in In re Water Supply in City of New York, 125 A.D. 219, 222 (2d Dep’t 1908),
“He does not want to sell; the property is taken from him through the exertion of the high powers of the State, and the spirit of the Constitution clearly requires that he shall not be thus compelled to part with what belongs to him without the payment, not alone of the abstract value of the property, but of all the necessary expenses incurred in fixing that value. This would seem to be dictated by sound morals as well as by the spirit of the Constitution, and it will not be presumed that the Legislature has intended to deprive the owner of property of the full protection which belongs to him as a matter of right.”
These words rang true in 1908 and still ring true more than a hundred years later in 2015.
These words and the words of the Florida Supreme Court serve as good reminders of what New York courts should keep in mind when deciding EDPL § 701 matters and justly compensating the property owner after the condemnor forcibly took the property.