Business Damages, Eligibility

Question 1

How calculate Bus Dmgs in a total taking?

Answer 1

Zero. Prop O gets compensated for land only

Question 2

What kind of interest in land must Bus O have to get Bus Dmgs?

Answer 2

Must have ownership or leasehold interest in BOTH Taken + Remainder.

Question 3

If Bus O has some interest in BOTH Taken + Remainder, what dmgs can it get?

Answer 3

Bus O gets compensated for land + if meet criteria can get business dmgs.

Question 4

If Bus O has an int in BOTH Taken + Remainder, what factor must its business meet?

Answer 4

Compliance w/ §73.071(3)(b)
1. Continuous physical existence on site;
2. For 5 yrs (can tack on) &
3. Own adjacent. [∑ “own” in ED incl leasehold int.]

Question 5

If Bus O has leasehold int in BOTH Taken + Remainder & meets all criteria, what limits Bus Dmg recovery?

Answer 5

Duration of its lawful possession.

Question 6

To meet 5 yr requirement of 73.370(3)(b) [bus dmgs], how can Bus O borrow time?

Answer 6

Can tack on (prior owner, same location).
Can’t buy out terminated bus or relocate.

Question 7

What are the 2 types of special damages?

Answer 7

BUSINESS DMGS

1) Dmg to Remainder.
2) Bus dmgs.

Question 8

What’s included in Business damages?

Answer 8

BUSINESS DMGS
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a Good Profit Business will Move Down.
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(1)  Loss of goodwill, 
(2)  Lost profits, 
(3)  Costs to move and sell equip, and 
(4)  Dmg by “down time.”

Question 9

Is the right to business damages protected by the Constitution?

Answer 9

No. They are from “legislative grace, not constitutional imperative.”

Question 10

Why isn’t the right to business damages protected by the Constitution?

Answer 10

Lost profits and business damages are intangibles which generally do not constitute ‘property’ in the constitutional sense.”

Question 11

State the 3 types of damages considered constitutionally protected “property.”

Answer 11

BUSINESS DMGS

(1) Land taken.
(2) Improvements, and
(3) Dmg to Remaining land (i.e., severance damages

Question 12

Special dmgs (FS 73.071) require a taking for ROW. How does case law interpret ROW?
Ex. roads only?

Answer 12

BUSINESS DMGS
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Broadly to include drainage.
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b/c 73.071 speaks of condemnation of a road, canal, levee, or water control facility right-of-way.

Question 13

State 8 prerequisites to claim Business Damages.

Answer 13

Business is Damaged by 5 Public Tenants @ the COPA cabana ROW.
———–
1. 5 years
2. By a public entity.
3. Tenants of BO or BO [lessees may qualify]
4. Continuous operation + physically @ taking location.
5. BO = prop taken O.
6. Partial taking.
7. Adjoining. Locale is adjoining lands also owned by property owner.
8. Taken for ROW.

Question 14

Must business be conducted on BOTH the taken portion and the remainder?

Answer 14

Yes - caselaw.

~confirmed.

Question 15

What business dmgs are recoverable?

Answer 15

“the probable damages to such business which the denial of the use of the property so taken may reasonably cause.”

Question 16

Is a change in access compensable?

Answer 16

Yes, access is a ‘property right.’ BUT the damage has to be different in kind to community.
Loss of convenient access is not different from damages sustained by the community at large.

Question 17

If a median is installed prohibiting half the cars from turning into your business, is that compensable?

Answer 17

No! Court found that to be a ‘traffic diminution’ which is not a property right!

Question 18

What are 2 categories of damages that are not compensable?

Answer 18

BUSINESS DMGS
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Convenience + traffic.
(a)  Can lose convenient access w/o comp as long as you have reasonable access.
(b)  Traffic is not a property right.

Question 19

How must consequential damages impact O, in order to be recoverable?

Answer 19

Special and peculiar, different in kind to the community.

Question 20

What category of persons can claim business damages, that is found in case law (I don’t find in statute).

Answer 20

Business has 5 Tenants @ the COPA cabana.
———–
A business tenant!
The claimant is usually the property owner but it can also be the tenant of the property owner limited by the duration of the leasehold interest.
———–
Seminole County v. Sanford Court Investors, Ltd., 743 So. 2d 1165 (Fla. 5th DCA 1999),

Question 21

What type of damage is specifically NOT avail in a bus dmg claim?

Answer 21

BUSINESS DMGS
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Interest.
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MJ Stavola.  b/c it's statute created.

Question 22

The statute is construed in whose favor?

Answer 22

LG.

Question 23

Which of the following re-starts the 5 year clock?
(a) Change in ownership.
(b) Change in name.
(c) Expansion or addition or move on same parcel.

Answer 23

BUSINESS DMGS
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None.
---
Need the business itself (not the current owner) to have been in business on site for 5 yrs.  Can be bought by new etc so long as continuous operation.

~~~Change in ownership surprises me.~~~

Question 24

Why would a Tenant be entitled to business damages? Need it be in business for 5 years?

Answer 24

I find NOTHING on this. Repeatedly the cases say that the Tenant is entitled to recover its interest in the taking & same is measured under 73.071(3).
Practice Pointer:
Look for a tenant & landlord to have been in business for 5 years. Need some outside insight on this.

Question 25

Name 3 conditions that do not allow business damages [even if business qualifies under 73.071(3)].

Answer 25

BUSINESS DMGS

(1) Total taking.
(2) CR is not a public body.
(3) Land is taken for some purpose other than building or expanding a right-of-way.

Question 26

What is “right of way” under 73.071(3)?

Answer 26

Not confined to road ROW. Also applies to ROW easements for drainage facilities.
SHD PROBABLY BE MENTIONED ON AN ESSAY