Florida is the only state in the country with a meaningful statutory remedy designed to fill the gap below the federal regulatory-takings line. The Bert J. Harris, Jr., Private Property Rights Protection Act gives owners a path to relief when government action imposes an inordinate burden that doesn't quite rise to a constitutional taking. It is one of the most useful — and underused — tools in Florida property-rights practice.
What the act is
Codified at Florida Statutes § 70.001, the Bert Harris Act provides a cause of action against governmental entities whose actions "inordinately burden" existing or vested uses of real property. The act was passed in 1995 with the express finding that owners should have remedies "in addition to and separate from" the protections available under the U.S. and Florida Constitutions — that is, beyond what the constitutional Takings Clause itself provides.
The remedy is monetary, calculated as the difference between the property's fair market value before and after the inordinate burden, plus other relief in particular circumstances.
What "inordinate burden" means
The statute defines "inordinate burden" carefully. An inordinate burden exists when government action has directly restricted or limited a property's use such that the owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the property — or a vested right to a specific use of the property — or where the owner is left with existing or vested uses that are unreasonable, such that the owner bears permanently a disproportionate share of a burden imposed for the public good.
Two ideas are doing most of the work:
- Investment-backed expectations. The relevant baseline is the use the owner reasonably expected — often defined by the regulatory regime in place at acquisition or by approvals already obtained.
- Disproportionate burden. The owner is bearing more than a proportionate share of a public burden — the kind of asymmetric loss the Takings Clause has long policed even where it doesn't quite trip the constitutional wire.
Procedure: notice, response, and litigation
The Bert Harris Act includes a structured pre-suit process designed to surface settlements where possible.
The pre-suit notice
The owner gives written notice of the claim to the head of each governmental entity whose action is alleged to have caused the burden. The notice period — historically 180 days, then 150 days, and reduced again in subsequent legislation — gives the entities time to evaluate the claim and respond.
The statement of allowable uses
Each noticed entity must issue a written statement of allowable uses, identifying what the owner can do with the property under current restrictions. The statement frames the rest of the proceeding.
Settlement offers
The entities may make settlement offers during the notice period — adjustments to the regulation, transferable development rights, conditional use approvals, monetary payment, or other relief. The act provides a path for settlement that can avoid litigation entirely in suitable cases.
Filing suit
If settlement is not reached, the owner may file suit. The court determines whether an inordinate burden exists. If it does, a separate proceeding determines the amount of compensation owed.
What gets compensated
Damages under the Bert Harris Act are measured by the loss in fair market value attributable to the inordinate burden. In addition, the act provides for attorney's fees and costs in particular circumstances, often calibrated to the relationship between the condemning entity's settlement offer and the final award.
Who can use the act
The act applies only to actions of state and local governmental entities affecting real property in Florida. It does not apply to federal action, and it has carve-outs for certain types of governmental action (emergency public-health and -safety measures, certain types of preexisting regulation, and others). Owners considering a Bert Harris claim should evaluate carefully whether the action and the property fit within the act's coverage.
The interaction with constitutional takings claims
The Bert Harris Act is "in addition to and separate from" constitutional takings claims, not in lieu of them. Owners can typically bring both kinds of claims, with the act providing a parallel theory of relief that may succeed where the constitutional standard is not met. The differences matter:
- The constitutional standard requires a taking (per se, total wipeout, or under Penn Central); the Bert Harris standard requires only an inordinate burden.
- The constitutional remedy is just compensation under the Takings Clause; the Bert Harris remedy is statutory and can include relief beyond strict fair-market-value diminution.
- Procedural rules, limitations periods, and notice requirements are different.
Coordinating both kinds of claim is part of the strategic planning every Florida property-rights case should involve.
Limitations and timing
The act has its own limitations period, generally measured from the application of the burden to the property — that is, the moment the owner is actually subjected to the inordinate burden rather than the date the regulation was enacted in the abstract. Owners should not assume that the limitations clock starts at the same time as a constitutional takings clock; the specific triggering event matters and should be evaluated case-by-case.
Why the act matters
Florida has a long history of land-use regulation, growth-management statutes, environmental restrictions, and overlay zoning. The Bert Harris Act is the legal instrument that recognizes the cumulative effect of those regimes on individual owners and provides a concrete path to relief when the burden becomes disproportionate. For owners who have planned around an existing or vested use that subsequent regulation has materially impaired, it is often the most effective tool available.
Talk to Yates Anderson
Property-rights cases reward early, careful work — getting an appraiser in the right room, framing the right legal theory, and preserving the right objections at the right time. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Frequently asked questions
Do I have to prove a constitutional taking to use the Bert Harris Act?
No. The act is intentionally designed to provide relief for burdens that fall short of constitutional takings. The standard is 'inordinate burden,' which is broader than the federal Penn Central or Lucas standards.
What kinds of regulations trigger Bert Harris claims?
Land-use regulations, environmental restrictions, growth-management decisions, conditional approvals, and similar government actions that materially limit existing or vested uses of real property. Pure tax and revenue measures generally are not Bert Harris claims (though they may trigger other theories).
Is the pre-suit notice mandatory?
Yes. The act establishes a structured pre-suit process, and failure to comply with the notice requirements can foreclose the claim. The notice period gives the governmental entity an opportunity to settle or modify the burden before litigation begins.
Can I recover attorney's fees under the act?
Yes, in particular circumstances, with the rules calibrated to the relationship between any settlement offer and the final award. Fee provisions have been the subject of legislative attention; current statutory text and case law should be reviewed in any specific matter.
How does the act interact with Florida's eminent domain statutes?
It supplements rather than replaces them. A property owner facing both a direct condemnation and a related regulatory burden may have claims under Chapter 73 (just compensation for the taking), Chapter 74 (quick-take procedure), and the Bert Harris Act (inordinate burden from regulatory overlay). The right combination depends on the facts.