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Alabama's Eminent Domain Laws and Property Rights

Property Rights in the State of Alabama

Alabama falls short in comparison with most states on the issue of protecting private property rights and fairly compensating landowners in eminent domain matters. One area where Alabama does well in comparison to other states is protecting property for being taken for economic development purposes by limiting “blight” takings to only truly blighted properties.

Grading Alabama’s laws against the Proposed Property Owners’ Bill of Rights which is available by clicking on the button above, Alabama would get a D+ grade. Property owners are consistently and systematically undercompensated in every condemnation action filed in the State due to the State’s failure to award attorney’s fees, costs and expenses, even when those fees, costs and expenses were reasonable and necessary to secure a judgment well in excess of the condemning entity’s offer. Business owners are denied the recovery of their business losses in every case. For a predominately conservative, property-rights oriented State, it is surprising how little protection is afforded to property owners in the State of Alabama in the field of eminent domain.

Meet OCA's Alabama Attorney

Casey Pipes, CRE

Casey Pipes is the managing shareholder at the firm of Helmsing, Leach, Herlong, Newman & Rouse, P.C.  Since  joining the firm in 1996, Casey has been representing landowners in condemnation actions throughout Alabama in both federal and state courts.  In addition to his eminent domain practice, Casey also represents clients in corporate and real estate transactions, land use entitlements, and with real property litigation and appeals.

A SUMMARY OF ALABAMA’S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Powers?

    The State of Alabama and the United States of America both have the inherent power of eminent domain. These governmental entities can also choose to exercise their power through other entities which they determine serve a public use through a process inaccurately called “delegating”. The State of Alabama and the Federal Government can delegate to private and to other public entities the power of eminent domain. In this manner, counties, municipalities, public utility corporations, departments of the State, school boards, and other public entities have been granted the power of eminent domain by the State. Similarly, private corporations like utility companies, railroads, pipeline transportation companies, telephone companies and others whose business purpose is to serve the public have also been granted the power of eminent domain by the State.

    To determine if a particular entity has the power of eminent domain to take land for a particular project, you need to first find the state or federal law that delegated the power to them, and then determine if that delegation is broad enough to apply to the property in question for the project the agency has in mind. Just because an entity can condemn land for one purpose, does not mean it can condemn it for a different purpose.

  • What Are the Legal Requirements for Exercising the Power of Eminent Domain?

    Entities who have the power of eminent domain can normally exercise it in their broad discretion subject only to some procedural requirements such as making an offer based on an appraisal prior to filing the condemnation action. These procedural steps are found in the Alabama Eminent Domain Code which is found at Code of Alabama, Section 18-1A-1, et seq. Some entities, however, must first secure Public Service Commission approval prior to filing a condemnation action. Again, you must start your analysis with the statute that delegated the power of eminent domain to see what limitations or legal requirements may have been imposed on that entity, and then go to the Alabama Eminent Domain Code.

  • What Limitations or Defenses Exist?

    The primary limitations and defenses are in the statutory delegation by the State to the entity as compared with the project they are contemplating. For example, some municipalities cannot condemn lands outside their corporate limits for certain projects, but they can condemn land inside their corporate limits for those same projects. Some entities can only condemn a right of way and not fee title. These can be defenses in a particular case to modify or defeat a taking. Other defenses are procedural, like those found in the Alabama Eminent Domain Code, and while these can be asserted, they generally can be cured by the agency.

  • What Constitutes a Public Purpose?

    The Alabama Constitution states that, “private property shall not be taken for, or applied to public use, unless just compensation be first made therefor.” Alabama Constitution, Art. I, Sec. 23. This means that property must be necessary for a public use before it can be taken. This property right protection, however, is largely ignored by the Courts as they defer to the condemning agency and to the State which delegated the power of eminent domain in determining what is a public use or public purpose.

  • How Is Just Compensation Determined?

    Alabama condemnation actions travel through two different trial court systems. Cases start in Probate Court, and in this venue just compensation is determined by a verdict of three people from the County who are appointed by the Probate Judge to serve as “Commissioners.” These Commissioners may view the property and will hold a hearing to determine just compensation. While the Probate Judge appoints the Commissioners, the Probate Judge does not deliberate with the Commissioners on the amount of their verdict. Think of the Commissioners as a small, three-person jury.

    If a party is not satisfied with the Probate Court Judgment then any party may appeal to Circuit Court for a trial de novo (an entirely new trial – not a review of the record in the Probate Court). In the Circuit Court the trial judge will determine just compensation or, if any party requests a jury, then a jury of 12 people will render a unanimous verdict to determine just compensation. Jury trials on just compensation are guaranteed by the Alabama Constitution.

  • How Is Fair Market Value Defined?

    The fair market value of property is the price it will sell for when it is offered for sale by a willing seller who is not forced to sell, and it is bought by a willing buyer who is not forced to buy, after due consideration of all matters that a buyer and seller would consider.

    Fair market value is a matter of opinion, and condemnation cases typically involve a presentation of different opinions of fair market value to the fact finder.

  • Are Damages to Remaining Property Recoverable?

    Yes. When some land is being taken but other land is going to remain with the owner, this is called a partial taking. The valuation approach in partial takings is to award the difference between the fair market value of the entire property before the taking (the “before value”) and the fair market value of the property remaining after the taking assuming that the project for which the land was taken had been built (the “after value”). The difference between the before and after value is the amount of just compensation that is owed.

  • Is the Landowner Entitled to Recover Reasonable Attorney’s Fees? Expert Fees? Litigation Costs?

    No. Alabama law does not allow a landowner to recover its attorney’s fees, expert fees or most litigation costs unless the condemnation action is dismissed.

    Our firm handles condemnation actions for property owners on an hourly rate basis, on a contingency fee basis, and on a hybrid basis that combines the two. We can tailor our fee arrangement with our clients to suit their needs, interests, and objectives. We would be happy to discuss what fee arrangement may work best for you in your case.

  • When and under What Circumstances Can the Government Take Possession of Property Prior to Final Just Compensation Being Paid?

    After the Probate Court Judgment is entered, the condemning agency can deposit the judgment (and some agencies must also post a bond in twice the amount of the judgment) to take possession of the property to build its project. This is true even if one or both parties appeals the Probate Court Judgement to Circuit Court for a trial de novo. The owner is allowed to withdraw from the funds deposited the amount of the agency’s offer.

Alabama

Helmsing, Leach, Herlong, Newman & Rouse
P.O. Box 2767
Mobile, AL 36652
Tel: (251) 432-5521 | Fax: (251) 432-0633
jcp@helmsinglaw.com | www.helmsinglaw.com

Casey Pipes is also a member of The Counselors of Real Estate®, an international organization of real estate professionals recognized as the leading advisors in complex real property matters.  He previously served as the Chairman of both the Condemnation, Zoning and Land Use Committee of the American Bar Association’s Section of Litigation and the Condemnation Committee of the American Bar Association’s Real Property, Trust and Estate (RPTE) Section.  Casey was also elected to membership on the Council of the Alabama Law Institute (ALI).  The Council includes six practicing attorneys from each federal Congressional District, and he will be one of the six Council members from Alabama’s 1st Congressional District, which includes Mobile, Baldwin, Washington, Escambia and Monroe Counties.  The Council is the governing body of the Alabama Law Institute which is a legislative agency whose purpose is to clarify and simplify the laws of Alabama, to revise laws that are out-of-date, and to fill in gaps in the law where there exists legal confusion.

Speaking Engagements

Casey Pipes is a frequent speaker at national and state-wide educational seminars on the subject of eminent domain and real property litigation.  On the national level, he has presented papers at several of the American Law Institute’s “Eminent Domain and Land Valuation Litigation” seminars dating back to 2008, with his most recent presentations at the 2016 conference held in Austin, Texas.  Casey has also made presentations at several national American Bar Association meetings.  At the state-wide level, Casey has presented papers for the Appraisal Institute, CLE Alabama, the Alabama State Bar, CLE International, the International Right of Way Association (IRWA), the National Business Institute (NBI), Lorman Education Services, and Strafford.

Publications

  • Appraising Convenience Stores: Focusing on Highest and Best Use to Explain Damages Caused by Reductions in Access,” co-Author with Robert E. Bainbridge, MAI, SRA, American Law Institute-CLE: Eminent Domain and Land Valuation Litigation, January 2016.
  • “Regulatory Takings Update: How the Alabama Supreme Court Solved the Williamson County/San Remo Hotel Conundrum,” American Bar Association, Section of Real Property, Trust and Estate Law, Condemnation Committee, 2013.
  • Alabama Chapter,  Fifty-State Survey: The Law of Eminent Domain, (Co-Author with Warren C. Herlong, Jr.), American Bar Association/First Chair Press, 1st Ed. (William G. Blake, Editor) (2012).
  • Co-Author, “Social Media Development = Real Estate Development,” Real Estate Issues, Global Cities in an Era of Change, Counselors of Real Estate, 2017.
  • Co-Author,”Alabama Enacts Major Revisions of Alabama Code 8-1-1″ Alabama Lawyer, Alabama Bar Association, November 2015.
  • Co-Author, “How to Depose an Opposing Appraiser (With Deposition Questions),” The Practical Real Estate Lawyer, January 2007.
  • Co-Author, “Damages to the Remainder – Loss of Parking Spaces in Condemnation Actions,” Probate and Property Magazine, May/June 2003.

Professional Affiliations

  • Designated Member, The Counselors of Real Estate®
  • Fellow,  American Bar Foundation
  • Member, Council of the Alabama Law Institute
  • Co-Chair, American Bar Association, Section of Litigation, Condemnation, Zoning and Land Use Committee (2010-2013)
  • Chairman,American Bar Association, Section of Real Property, Trust and Estate’s Condemnation Committee (2013-2015)
  • Secretary/Treasurer, Associate Board, Petroleum and Convenience Marketers of Alabama (2016- ) (Member, Associate Board, 2012-present)
  • Fellow, American College of Real Estate Lawyers (ACREL)

Disclaimer

Disclaimer Required by Alabama Law “No representation is made that the quality of legal services to be provided is greater than the quality of legal services provided by others.”

Education

  • Washington & Lee University (Lexington, Virginia) B.A. 1993
  • University of Alabama School of Law (Tuscaloosa, Alabama) J.D. 1996, cum laude

Bar Admissions

  • State of Alabama
  • U.S. District Court for Southern District of Alabama
  • U.S. Court of Federal Claims

Honors and Awards

  • AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®
  • Ranked by Chambers and Partners
  • Named Lawyer of the Year for Mobile, Alabama in 2020, 2018, 2017 and 2016 in his areas of practice by the Best Lawyers in America®

 

 

Casey Pipes is also a member of The Counselors of Real Estate®, an international organization of real estate professionals recognized as the leading advisors in complex real property matters.  He previously served as the Chairman of both the Condemnation, Zoning and Land Use Committee of the American Bar Association’s Section of Litigation and the Condemnation Committee of the American Bar Association’s Real Property, Trust and Estate (RPTE) Section.  Casey was also elected to membership on the Council of the Alabama Law Institute (ALI).  The Council includes six practicing attorneys from each federal Congressional District, and he will be one of the six Council members from Alabama’s 1st Congressional District, which includes Mobile, Baldwin, Washington, Escambia and Monroe Counties.  The Council is the governing body of the Alabama Law Institute which is a legislative agency whose purpose is to clarify and simplify the laws of Alabama, to revise laws that are out-of-date, and to fill in gaps in the law where there exists legal confusion.

Speaking Engagements

Casey Pipes is a frequent speaker at national and state-wide educational seminars on the subject of eminent domain and real property litigation.  On the national level, he has presented papers at several of the American Law Institute’s “Eminent Domain and Land Valuation Litigation” seminars dating back to 2008, with his most recent presentations at the 2016 conference held in Austin, Texas.  Casey has also made presentations at several national American Bar Association meetings.  At the state-wide level, Casey has presented papers for the Appraisal Institute, CLE Alabama, the Alabama State Bar, CLE International, the International Right of Way Association (IRWA), the National Business Institute (NBI), Lorman Education Services, and Strafford.

Publications

  • Appraising Convenience Stores: Focusing on Highest and Best Use to Explain Damages Caused by Reductions in Access,” co-Author with Robert E. Bainbridge, MAI, SRA, American Law Institute-CLE: Eminent Domain and Land Valuation Litigation, January 2016.
  • “Regulatory Takings Update: How the Alabama Supreme Court Solved the Williamson County/San Remo Hotel Conundrum,” American Bar Association, Section of Real Property, Trust and Estate Law, Condemnation Committee, 2013.
  • Alabama Chapter,  Fifty-State Survey: The Law of Eminent Domain, (Co-Author with Warren C. Herlong, Jr.), American Bar Association/First Chair Press, 1st Ed. (William G. Blake, Editor) (2012).
  • Co-Author, “Social Media Development = Real Estate Development,” Real Estate Issues, Global Cities in an Era of Change, Counselors of Real Estate, 2017.
  • Co-Author,”Alabama Enacts Major Revisions of Alabama Code 8-1-1″ Alabama Lawyer, Alabama Bar Association, November 2015.
  • Co-Author, “How to Depose an Opposing Appraiser (With Deposition Questions),” The Practical Real Estate Lawyer, January 2007.
  • Co-Author, “Damages to the Remainder – Loss of Parking Spaces in Condemnation Actions,” Probate and Property Magazine, May/June 2003.

Professional Affiliations

  • Designated Member, The Counselors of Real Estate®
  • Fellow,  American Bar Foundation
  • Member, Council of the Alabama Law Institute
  • Co-Chair, American Bar Association, Section of Litigation, Condemnation, Zoning and Land Use Committee (2010-2013)
  • Chairman,American Bar Association, Section of Real Property, Trust and Estate’s Condemnation Committee (2013-2015)
  • Secretary/Treasurer, Associate Board, Petroleum and Convenience Marketers of Alabama (2016- ) (Member, Associate Board, 2012-present)
  • Fellow, American College of Real Estate Lawyers (ACREL)

Disclaimer

Disclaimer Required by Alabama Law “No representation is made that the quality of legal services to be provided is greater than the quality of legal services provided by others.”

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