When you learn that your property may be condemned, you need information and advice as to how to proceed and what actions to take. Here are a number of common questions and answers which may be helpful.
Q. What is eminent domain?
A. Eminent domain is the power of the government to take private property belonging to its citizen's for public use, provided "just compensation" is paid to the owner. It can also be called "condemnation" or, in some states, "expropriation."
Q. The government (or a transportation authority, redevelopment agency, utility or pipeline company) wants to take my property by eminent domain. What can I expect to happen? What are the steps in a condemnation case?
A. The laws and procedures relating to eminent domain vary from state to state. You should consult with an experienced eminent domain attorney in your state for specific information about your property rights and to learn more about the eminent domain process.
Q. What is the definition of public use?
A. Typically, public use has been defined as government projects, such as widening roads, building schools, creating parks and correcting drainage issues. That definition has expanded over the years to include improvement of run-down ("blighted") areas and the redevelopment of certain areas with a plan approved by, and usually supervised by, the government.
Q. Can eminent domain be used to take my property and give it to another private party?
A. The federal and state constitutions say that property may only be condemned for "public use." For many years, "public use" meant that property could be taken for things like roads, schools, and public buildings. Later, courts allowed eminent domain to be used for private corporations developing public utilities, like electric companies and railroads. In the 1950's, eminent domain became increasingly used for "slum clearance." Once an area was declared to be a slum or "blighted," property could be taken using eminent domain and then transferred to another private party. More recently, local governments have tried to use eminent domain to transfer land to other private parties. Whether and under what circumstances courts will allow this use of eminent domain is a matter of state law. Several states permit condemnations for economic development, but some do not. You should consult with an experienced eminent domain lawyer in your state to determine if the condemnation threatening your property is legal.
Q. In general, what problems do I create by handling my own negotiations?
A. Everything you say or do may be used against you by the condemning authority at different stages of negotiations and litigation. By waiting to select an attorney after talks have been underway, you risk compromising your rights and compensation. Keep in mind that you, as the property owner, are engaging with a condemning authority which has full knowledge of its rights while you have little knowledge of your rights under eminent domain law.
Q. Should I discuss the value of my property with a government representative?
A. No. First, you should consult with an experienced eminent domain attorney. Compensation by a condemning authority may include special benefits and rights which the property owner needs to know before dealing with the condemning authority. What the property owner gains by using an experienced eminent domain lawyer is a level playing field with the condemning authority.
Q. Should I try to secure government approvals to develop my land?
A. No. Do not attempt to obtain building permits, variances, zone changes, subdivision approvals or curb cuts without consulting counsel. A failed attempt to obtain such approvals can be extraordinarily harmful to your case.
Q. Should I appeal my real estate tax assessment?
A. Prior to considering an appeal of your real estate taxes, you should consider consulting an attorney experienced in eminent domain litigation. If you do appeal the tax assessment, your opinion of value in the tax appeal may be used against you in the eminent domain proceeding and affect the amount of just compensation you receive.
Q. Should I hold off on maintaining the property?
A. No. Even if you are facing condemnation, the value of your property is often determined at the time it is actually taken by the government. A lack of maintenance will only devalue it.
Q. What should I tell the government real estate appraisers?
A. Very little, if anything. They are not interested in you receiving the highest possible value for your property. They are hired by the governmental agency seeking to acquire your property. Consult with an experienced eminent domain attorney before giving any information to the government appraisers.
Q. What information and documents should I provide the government if they are looking to condemn my property?
A. Nothing, prior to consulting with an experienced condemnation lawyer. As a general rule, do not supply copies of leases, expense records, profit and loss statements, or similar documents to the government or its representatives.
Q. Should I let the government conduct any tests for contamination?
A. No. Talk to an experienced condemnation attorney first. Underground oil tanks and potential contamination underground or in a building is a complicated issue in the field of eminent domain. Contamination on your property could significantly impact your compensation if not handled correctly.
Q. Can I rely upon the government's relocation personnel to obtain all of my relocation benefits?
A. No, you need to make sure you are fully informed of your cash and non-cash rights under the relocation laws. In some instances, the federal relocation laws apply and in others situations your state relocation law will apply. An experienced condemnation lawyer will insure that your benefits are maximized and will know how to resolve differences without recourse to litigation.
Q. What is relocation assistance and who qualifies to receive it?
A. Although reimbursement for relocation expenses is related to the eminent domain process, it is handled separately from it.
In 1970, Congress passed the Uniform Relocation Assistance and Real Property Acquisition Policies Act, and amended it in 1987. Although this action provided clarification in some areas, the relocation reimbursement process for state projects still varies according to location, and cases are usually evaluated on an individual basis.
If you have been displaced due to federal or federally funded projects, an experienced condemnation lawyer can insure that your benefits are maximized.
Nationwide Eminent Domain Lawyers
The knowledgeable attorneys who founded the Owner's Counsel of America are experienced in complex eminent domain issues. We are a highly skilled group of lawyers dedicated to protecting the rights of private property owners nationwide.
Whatever your legal needs are in this area of practice, we welcome the opportunity to be of service and encourage you to contact a lawyer affiliated with the Owners' Counsel to arrange an initial consultation to discuss your concerns or answer your questions concerning condemnation or the eminent domain process.