EVEN THE GOVERNMENT HAS TO PAY, SOMETIMES:
THE BERT J. HARRIS PRIVATE PROPERTY RIGHTS PROTECTION ACT

What happens when a governmental entity burdens or restricts one’s property rights? Can a property owner receive any compensation for his or her diminished property value? Maybe.

The Bert J. Harris, Jr., Private Property Rights Protection Act (the “Act” enacted in Florida in 1995) provides relief or payment of compensation to owners of real property when a governmental entity puts in place a new law, ordinance, rule or regulation and such law, as applied, unfairly affects the interests of private property owners. The Act applies to all levels of governmental action and includes state, county and municipal enactments.

The Act is triggered when an action of a governmental entity has inordinately burdened or adversely impacted an existing use of real property or a vested right to a specific use of that property. For example, a rezoning of property that would restrict an owner’s existing use of his or her property might be subject to the Act. If the property owner prevails in an action against the government under the Act, then the owner is entitled to relief, and this may include compensation for any actual loss in the fair market value of the property because of the rezoning.

In order to take advantage of the Act, certain criteria must be met. First, there has to be an existing use of real property by the owner. This means that there has to be an actual, present use or activity on the property. This can also mean that the property owner has authority or permission to use the property in a certain way (for example, having a permit to construct a multi-unit structure on the land).

Second, the governmental action has to directly affect the property interests of the real property owner. In other words, the government has to have specifically applied the law, rule, regulation or ordinance to the owner’s property. A District Court of Appeal in Florida recently clarified this issue when it decided that an owner, who had not yet filed a development application or a building permit and didn’t yet have any request denied as a result of the enacted ordinance, couldn’t argue he had been impacted. This would be a premature claim. A specific not a general action is required in order to trigger the Act.

Finally, the governmental action has to directly and permanently restrict the owner’s use. Temporary impacts to real property are usually not enough.

If a property owner believes he or she has met these criteria, then a written claim can be presented to the governmental entity with an appraisal that supports the claim and demonstrates a loss in fair market value. Submission of a claim is a prerequisite to the owner’s ability to file an action in court. The claim must be made at least 180 days before filing suit. After the owner submits its claim, the government will generally make a written settlement offer. If the owner accepts the settlement offer, then the owner and the government must jointly seek the court’s approval. If the settlement offer proposed by the government is rejected, the owner may file a claim for compensation with the court which will then determine if the criteria listed above are present and if the government has adversely affected the property value. A jury will decide the actual amount of compensation due to the property owner for the loss in value.

While the owner may also be entitled to recover reasonable costs and attorney’s fees, one has to be careful in filing these suits because the reverse is also true. If the owner loses, he or she may have to pay the government’s incurred legal costs and fees.

Property owners need to keep this Act in mind; it can provide them a possible recourse when a governmental directive adversely affects their property and its value.

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Article Concepts: Bert Harris Act; property rights; compensation for loss in value.

 

© 2010, The Barthet Firm