Property Owners’ Frequently Asked Questions About Eminent Domain
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. Who can use eminent domain?
A. Local, state and the federal government have the power of eminent domain. The government’s power of eminent domain extends to government agencies, such as your municipality’s public works department, state’s Department of Transportation or the U.S. Forest Service. Some private companies or individuals may also be granted the power to condemn private property to complete certain projects intended to benefit the public. These private companies may include redevelopment authorities, oil and gas companies, railroads or other privately-owned utility companies.
Q. What does “public use” mean?
A. Typically, public use has been defined as government projects intended to bring a benefit to its citizens, such as widening roads, building schools, constructing parks and correcting drainage issues. That definition has expanded over the years to include improvement of run-down (“blighted”) neighborhoods and the redevelopment of certain areas with a plan approved by, and usually supervised by, the government.
Q. The government (or a transportation authority, redevelopment agency, utility or energy 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 and can be quite complex. We recommend that you consult with an experienced eminent domain lawyer in your state for specific information about your property rights and to learn more about the condemnation process.
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. Should I discuss the value of my property with a government representative?
A. No. We recommend that you consult with an experienced condemnation attorney first before discussing anything with the government representative. 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. Why shouldn’t I negotiate on my own?
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. I have plans to develop my property. Should I continue to secure government approvals to develop my land?
A. No. We do not recommend that you attempt to obtain building permits, variances, zone changes, subdivision approvals or curb cuts without consulting experienced eminent domain counsel. A failed attempt to obtain such approvals can be used against you in condemnation litigation and 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 condemnation proceeding and affect the amount of just compensation you receive.
Q. Should I stop caring for and maintaining my 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 may decrease its value affecting the amount of just compensation you may be entitled to receive.
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 environmental or other tests?
A. No. Talk to an experienced condemnation attorney first. Some of the tests the condemning authority might wish to do are routine and not invasive. However, some tests require boring large holes into the ground or establishing monitoring wells and may disrupt your use and enjoyment of the property. Further, potential contamination underground or in a building can further complicate the eminent domain proceedings. 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 monetary and non-monetary rights under relocation laws. In some instances, 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 additional 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. 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.
Q. Why should I consult with an eminent domain lawyer?
A. Eminent domain proceedings are complex and can involve complicated issues such as the property’s highest and best use, the calculation of just compensation and the damages a property has suffered due to the taking. Property condemnation can also be a confusing and stressful process. Having a qualified condemnation lawyer on your side to assist as you navigate the process is not only helpful, but possibly essential. The government will have experienced eminent domain counsel on its side. To protect your rights, shouldn’t you?