Business Damages, Eligibility Flashcards
How calculate Bus Dmgs in a total taking?
Zero. Prop O gets compensated for land only
What kind of interest in land must Bus O have to get Bus Dmgs?
Must have ownership or leasehold interest in BOTH Taken + Remainder.
If Bus O has some interest in BOTH Taken + Remainder, what dmgs can it get?
Bus O gets compensated for land + if meet criteria can get business dmgs.
If Bus O has an int in BOTH Taken + Remainder, what 8 factors must its business meet?
(1) Public . . . . . . . . . (2) Tenant . . . . . . (3) 5
(4) Continuous . . . . (5) Own/Operate
(6) Partial/Physical . (7) Adjacent, . . . . (8) ROW
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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.]
If Bus O has leasehold int in BOTH Taken + Remainder & meets all criteria, what limits Bus Dmg recovery?
Duration of its lawful possession.
To meet 5 yr requirement of 73.370(3)(b) [bus dmgs], how can Bus O borrow time?
Can tack on (prior owner, same location).
Can’t buy out terminated bus or relocate.
What are the 2 types of special damages?
BUSINESS DMGS
1) Dmg to Remainder.
2) Bus dmgs.
What’s included in Business damages?
BUSINESS DMGS ----------- a Good Profit Business will Move Down. ----------- (1) Loss of goodwill, (2) Lost profits, (3) Costs to move and sell equip, and (4) Dmg by “down time.”
Is the right to business damages protected by the Constitution?
No. They are from “legislative grace, not constitutional imperative.”
Why isn’t the right to business damages protected by the Constitution?
Lost profits and business damages are intangibles which generally do not constitute ‘property’ in the constitutional sense.”
State the 3 types of damages considered constitutionally protected “property.”
BUSINESS DMGS
(1) Land taken.
(2) Improvements, and
(3) Dmg to Remaining land (i.e., severance damages
Special dmgs (FS 73.071) require a taking for ROW. How does case law interpret ROW?
Ex. roads only?
BUSINESS DMGS ----------- Broadly to include drainage. ---------- b/c 73.071 speaks of condemnation of a road, canal, levee, or water control facility right-of-way.
State 8 prerequisites to claim Business Damages.
Business is Damaged by 5 Public Tenants @ the COPA cabana ROW.
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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.
Must business be conducted on BOTH the taken portion and the remainder?
Cases suggest that.
What business dmgs are recoverable?
“the probable damages to such business which the denial of the use of the property so taken may reasonably cause.”
Is a change in access compensable?
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.
If a median is installed prohibiting half the cars from turning into your business, is that compensable?
No! Court found that to be a ‘traffic diminution’ which is not a property right!
What are 2 categories of damages that are not compensable?
BUSINESS DMGS ----------- Convenience + traffic. (a) Can lose convenient access w/o comp as long as you have reasonable access. (b) Traffic is not a property right.
How must consequential damages impact O, in order to be recoverable?
Special and peculiar, different in kind to the community.
What category of persons can claim business damages, that is found in case law (I don’t find in statute).
Business has 5 Tenants @ the COPA cabana.
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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.
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Seminole County v. Sanford Court Investors, Ltd., 743 So. 2d 1165 (Fla. 5th DCA 1999),
What type of damage is specifically NOT avail in a bus dmg claim?
BUSINESS DMGS ----------- Interest. ----------- MJ Stavola. b/c it's statute created.
The statute is construed in whose favor?
LG.
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.
BUSINESS DMGS ----------- 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.~~~
Why would a Tenant be entitled to business damages? Need it be in business for 5 years?
Tenant is deemed to have a ‘property’ right.
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The BUSINESS need be physically continuously there for 5 years. Owner/tenant can change.
