Bert J. Harris Act – Part 2

Thursday, 13 September, 2012 06:00 Written by Tyler Hampy 0 Comments

As I mentioned in my previous post regarding the legal substance of the Bert J. Harris Private Property Rights Protection Act (the “Act”), this post will center on the procedural aspects of the Act.

Maybe not quite as exciting, but very important to know. If the procedure isn’t followed correctly, the claim has no leg to stand on.

As a quick refresher, the Act was formulated to provide protection (often by way of compensation) to private property owners when a rule, regulation, law, or ordinance of the state or political entity in the state restricts or limits private property rights.

As for the procedure, a claim brought under the Act must be presented to the government entity no later than one year after the rule, regulation, ordinance, or law is first applied. However, the 1 year deadline is tolled while the property owner seeks other available administrative or judicial relief.

To begin an action, the Act requires that a property owner (also referred to as the claimant) give at least 180 days notice to the governmental entity before filing a claim under the Act. A property owner wishing to bring an action must present the claim in writing to the head of the governmental entity against whom he/she intends to file. If more than one governmental entity will be involved in the action, the property owner must present the claims to each of the governmental entities separately. Along with the notice of the claim, the property owner must submit a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property (i.e. the inordinate burden).

After receiving notice of the claim, the governmental entity must report the claim in writing to the Department of Legal Affairs in Tallahassee within 15 days. Additionally, the governmental entity must provide written notice of the claim to all property owners of real property contiguous to the claimant’s property. This step is done is to ensure that adjacent property owners are made aware that they may have a similar claim.

During the 180 day notice period, the governmental entity must make a written settlement offer to the claimant. The governmental entity may offer to:

modify, adjust, or change the application of the rule, regulation, or ordinance;
issue a development order, variance, or special exception for the claimant;
purchase the real property from the claimant; or
make no change at all to the rule, regulation, or ordinance.

However, any settlement offered by the governmental entity must protect the public’s interest and represent necessary and appropriate relief and may not be solely to avoid the claim.

Once the offer has been conveyed, the claimant may decide to accept or reject the offer. If the claimant does not accept the offer, the governmental entity must issue a written ripeness decision identifying the ‘allowable uses’ of the property, or the uses to which the subject property may be put. The ripeness decision basically means that a claimant has exhausted all the administrative avenues to address their issues and has established a sufficient factual basis for the claim.

If the property owner rejects the settlement offer and the ripeness decision, the property owner may file a claim for compensation in the circuit court in the county where the property is located.

The circuit court will then decide whether an existing use of the property or a vested right to a specific use of the property existed and, if so, whether the governmental entity has inordinately burdened the property. If more than one governmental entity is involved, the court must determine the percentage of responsibility each governmental entity contributed.

If the court determines that the governmental entity has inordinately burdened the property, the court will impanel a jury to determine the total amount of compensation that should be paid to the property owner. The jury will determine the amount of compensation by evaluating the difference in the fair market value of the real property prior to the governmental action and the fair market value of the real property as inordinately burdened. Additionally, the property owner will be entitled to recover reasonable costs and attorneys’ fees. However, if the governmental entity prevails in the litigation, it will be entitled to costs and attorneys’ fees.

Bert J. Harris Act – Part 1

Thursday, 30 August, 2012 06:00 Written by Tyler Hampy 0 Comments

In 1995, Florida enacted The Bert J. Harris Private Property Rights Protection Act (the “Act”) and along with it came the companion legislation, the Florida Land Use Dispute Resolution Act. This post will primarily focus on the substantive law encompassed in the Act while my next post will center on the procedural aspects of the Act.

To begin, the Act was formulated as an attempt to provide greater protection to private property owners in response to the government’s excessive rulemaking and over-regulation.

The Legislature recognized that some rules, regulations, and laws of the state restrict or limit private property rights without amounting to a taking under the laws of Florida or the United States Constitution. Therefore, the Legislature decided to create a separate and distinct cause of action from the law of takings.

The new cause of action provides for payment of compensation when a new law, rule, regulation, or ordinance of the state or political entity in the state, as applied, unfairly affects real property.

So, of course, property owners wanted to know to what extent does the regulation have to affect the property to obtain relief? The Legislature determined that relief would be available if the law or regulation “inordinately burdens” private property rights.

So the next question became, well, what is considered an inordinate burden? It’s defined in Fla. Stat. 70.001(3)(e) as an action of one or more governmental entities that has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

With that said, all was well with the Act until 2006, when Brevard County questioned its constitutionality. In Brevard County v. Stack, property owners brought an action under the Act arising out of a county ordinance that restricted their ability to use wetland portions of property. They asserted that they suffered a significant diminution in value because of the ordinance that, as applied, denied them the ability to develop their land and allow offsite mitigation for wetland impacts. The Circuit Court held in favor of Stack, and the County appealed, claiming that the Act was unconstitutional for three reasons.

1. County’s Claim: The Act authorizes local governments to contract away inherent sovereign police powers and requires the government to buy back the ability to exercise those powers, violating due process.

Court’s Ruling: When the government inordinately burdens property through regulation, the Act provides relief for property owners. If an inordinate burden is found, the government can waive, modify, or change the regulation or financially compensate the property owner. The Act does not affect the inherent power of the government, but requires that the government fairly provide relief to the property owner.

2. County’s Claim: The Act violates the separation of powers doctrine and changes the judicial interpretation of a taking under the Florida Constitution.

Court’s Ruling: The Act establishes a new and distinct cause of action separate from a taking.

3. County’s Claim: The Act delegates legislative power to the courts because there are no standards, conditions, or criteria to guide interpretation of the Act.

Court’s Ruling: The Act contains definitions, time periods, settlement options, and other guidelines for determinations to be made by the judicial system, pursuant to statute.

In sum, the Court held that the Act did not violate due process, did not violate the separation of powers doctrine, and did not unconstitutionally delegate legislative power to the courts. Therefore, the Act was upheld as constitutional.

Since that time, landowners have achieved success with claims brought under the Act, and as a result, local governments are becoming more willing to settle with property owners.

Squatters on the Rise

Thursday, 23 August, 2012 06:00 Written by Tyler Hampy 0 Comments

It’s hard to believe you could walk into a luxury home abandoned by the owner, file a simple piece of paper with the county, stay put in the extravagance, and claim you are the rightful possessor? A little over six months ago, Robert George Harris III tried to do just that. However, things didn’t work out quite like he had hoped.

Harris found an abandoned home in Okaloosa County, which he later realized was owned by the Bank of America, and because it was unlocked, he entered. Harris paid to have the locks changed and lived in the house for two months. After being confronted by police, Harris claimed ownership of the home under Florida’s adverse possession laws.

The problem for Harris was that adverse possession is more complicated than just showing up and saying “mine,” just as saying the word “bankruptcy” does not constitute declaring bankruptcy.

Harris would’ve done himself a favor by taking a look at the adverse possession law in Florida or calling an attorney before making himself comfortable in the Okaloosa home.

In Florida, adverse possession is acquired by actual, continuous, and uninterrupted use by the claimant (i.e. the squatter) of the lands of another, for seven years. In addition, the use must be adverse to that of the owner and must either be with the knowledge of the owner or so open, notorious, and visible that the claimant’s use is imputed to the owner.

Moreover, the claimant’s use or possession must be inconsistent with the owner’s enjoyment of the property and must not be a permissive use. Therefore, the use must be such that the owner has a right to stop it, such as an action for trespass or eviction.

When claiming adverse possession, the use or possession is presumed to be in subordination to the true owner and with his permission, so the burden is on the claimant to prove that the use or possession is adverse. This essential element as well as all others must be proven by clear and positive proof and can’t be established by loose or uncertain testimony. Any doubt as to the creation of the right must be resolved in favor of the owner.

Additionally, the Florida courts have said that a mere “mental enclosure” of property is not enough for actual possession. To have actual possession, there must be continued acts of occupying, clearing, cultivating, pasturing, building fences, or other improvements on the property, in addition to paying taxes on the property.

To prove that the use is open and notorious, the claimant’s occupancy must be conspicuous, widely recognized, and commonly known, which can be shown by visible acts of ownership.

In cases where the squatter has met all of the elements of adverse possession, police officers are typically powerless to remove the resident. However, in Harris’ case, he had no proof of ownership, (which is sometimes shown in the form of utilities in the new owner’s name), no proof that he paid taxes on the property, and no proof that his use was continuous. Purchasing new locks was not enough for Harris to take the home by adverse possession.

Harris was subsequently charged with burglary, larceny, and fraud. People across the country are following in Harris’ footsteps in hopes of walking into an abandoned mansion and becoming the rightful owner. Unfortunately, without really understanding the law on adverse possession, many of these folks may find themselves facing criminal charges.

Civil Law vs. Criminal Law

Thursday, 16 August, 2012 06:00 Written by Tyler Hampy 0 Comments

Most people have a pretty good grip on the basics of criminal law; however, civil law tends to give people a little more trouble. Criminal law covers crimes, prosecution, and defense. That’s really as good a definition as any. However, more specifically, criminal law encompasses the dealings with any criminal activity that causes harm to another individual or the general public. Within the criminal law realm, there are written rules and statutes that set out the punishment to be imposed on people who do not obey the law. Civil law, on the other hand, deals with disputes between individuals or organizations, in which compensation may be awarded to the victim.

First and foremost, civil and criminal cases begin in two different places. In criminal law, a person accused of a crime is charged in a formal accusation, and the government, on behalf of the people of the United States, prosecutes the case. In civil law, a private party (the plaintiff) claims that another person or entity (the defendant) has failed to carry out a legal duty owed to him/her.

One of the biggest differences between civil and criminal law is the idea of punishment. Typically, a losing defendant in civil litigation reimburses the plaintiff for losses caused by the defendant’s behavior. In contrast, a criminal law defendant is punished by incarceration in jail (and in exceptional cases, execution of the defendant) and/or a fine made payable to the government.

Defendants in criminal cases are presumed innocent while parties in a civil case stand on even ground. In civil law cases, the burden of proof requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff’s entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover. In criminal law cases, the burden of proof is always on the state. The state must prove that the defendant is guilty beyond a reasonable doubt, while the defendant must prove nothing.

It is worth dissecting this difference between criminal and civil law in a bit more detail. Legal authorities tend to believe that “beyond a reasonable doubt” means that there is at least a 98% or 99% certainty of guilt. In that case, the triers of fact in a criminal case have to be essentially CERTAIN that the defendant is guilty. On the other hand, in civil cases, if the trier of fact believes that there is more than a 50% chance that the defendant is liable, the plaintiff wins. Therefore, it is basically a balancing act, where the trier of fact must decide which side they believe more, even if only a touch more.

Author Archive

Bert J. Harris Act – Part 2

Bert J. Harris Act – Part 1

Squatters on the Rise

Civil Law vs. Criminal Law

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