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Presuit Appraisal Requirement under Bert J. Harris Act

The Bert J. Harris, Jr., Private Property Rights Protection Act (also known as the “Bert J. Harris Act”) “provides recovery for the loss of fair market value when the use of land is inordinately burdened by government action.”   Blue Water Holdings, SRC, Inc. v. Santa Rosa County, FL, 46 Fla.L.Weekly D2622c (Fla. 1st DCA 2021); Fla. Stat. s. 70.001.    A claimant cannot just rush to the courthouse and file a lawsuit.  There is a presuit requirement and notice period that requires the claimant to funish an appraisal, as contained in Florida Statute s. 70.001(4)(a), which maintains:

Not fewer than 90 days before filing an action under this section against a governmental entity, a property owner who seeks compensation under this section must present the claim in writing to the head of the governmental entit The property owner must submit, along with the claim, a written appraisal report as defined ins. 475.611(1)(e) that supports the claim and demonstrates the loss in fair market value to the real property. If the action of government is the culmination of a process that involves more than one governmental entity, or if a complete resolution of all relevant issues, in the view of the property owner or in the view of a governmental entity to whom a claim is presented, requires the active participation of more than one governmental entity, the property owner shall present the claim as provided in this section to each of the governmental entities.

Notably, the period used to be 150 days, but was recently reduced to 90 days.

In Blue Water Holdings, after the case was pending many years and upon the claimant filing a second amended complaint, the government moved to dismiss the lawsuit arguing that the claimant failed to provide valid appraisals as required by the Bert J. Harris Act.  Although the trial court denied the government’s motion to dismiss, it subsequently granted summary judgment in favor of the government on this issue.

The First District Court of Appeal reversed.

The purpose of the presuit provisions of section 70.001(4)(a), and in particular the requirement that the property owner submit an appraisal along with its claim, is to give the governmental entity sufficient information to evaluate the claim in order for the governmental entity to make an appropriate offer to settle the dispute prior to a lawsuit, as set forth in section 70.001(4)(c).Blue Water Holdings, supra.

Here, there was no evidence that the government was unable to evaluate the claimant’s claim due to the insufficiency of any appraisal it received from the claimant.  Rather, it said nothing and did nothing until years after the lawsuit when the claimant filed a second amended complaint.  The evidence did show, however, that the government was on notice of the loss of fair market value prior to the lawsuit.  “Because the appraisals were prepared by a person qualified to provide an expert opinion as to fair market value, and because the appraisals provided sufficient information to allow the [government] to evaluate the claim for the purpose of determining whether to make a settlement offer at the end of the 150-day-notice period [now 90 days], we find the appraisals, whatever their shortcomings may have been, were valid….” Blue Water Holdings, supra

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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