Home | Louisiana Eminent Domain

Louisiana's Eminent Domain Laws and Property Rights

Property Rights in the State of Louisiana

Louisiana property right protections are similar in many ways to the laws and constitutional provisions of other states. When faced with the expropriation proceeding, owners are entitled to receive the fair market value of their property, based on its highest and best use and are also entitled to have a jury make the determination of just compensation. A property owner may also recover reasonable attorney’s fees and other litigation costs where the expropriating authority improperly pursues a taking, or where the property owner receives a compensation award larger than the highest amount offered.

Louisiana has a long line of cases regarding public use, economic development, and deference to a governmental entity’s determination of necessity that makes its legal framework consistent with the majority’s opinion in Kelo, despite having passed an anti-Kelo Constitutional Amendment. However, while the state’s expropriation authority is construed broadly by the courts, expropriating authorities are required to compensate property owners to the full extent of their loss, which may include compensation for moving costs, relocation, inconvenience, and loss of profits from the taking of a business enterprise.

Meet OCA's Louisiana Attorney

Randall A. Smith

Randall Smith is a veteran trial lawyer who has successfully handled a variety of civil, commercial and criminal litigation. His litigation practice focuses primarily on business and property litigation, including a concentration on takings/eminent domain litigation on behalf of private property owners throughout Louisiana. Randy has obtained many multi-million dollar judgments, as well as successfully defending against many multi-million dollar claims. Randall helped lead OCA as the Board Chair in 2017-2019.

A SUMMARY OF LOUISIANA'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 Laws?

    In Louisiana, the only Napoleonic state in the country, “expropriation” is the term used in the taking of private property for public use. Pursuant to La. R.S. 19:2.1, the state or its political corporations or subdivisions may take private property for public use in accordance with Article 1, §4 and Article VI, § 21 of the Louisiana Constitution. The general expropriation statute sanctions takings by public bodies and certain quasi-public entities, such as utilities. Consequently, it is important to confirm at the outset of any case whether the entity seeking to exercise the power of eminent domain has received a lawful delegation from the State to do so.

  • What Are the Legal Requirements for Exercising the Power?

    Under Louisiana law, property can only be expropriated for a lawful public use or purpose. Expropriating authorities must possess the authority to take needed property, and in all situations, if the right to expropriate exists, just compensation must be paid for the property being taken. Louisiana law also requires the expropriating authority to attempt, in good faith, to reach an agreement as to compensation with the owner of the property sought to be taken. The expropriating authority must provide the landowner with certain information from its appraisals or estimates and must offer as payment an amount not less than the lowest appraisal. If the parties are unable to reach an agreement, the state or its political corporations or subdivisions may then file a petition for expropriation in the district court of the parish in which the property to be expropriated is located.

    To learn more about the general procedural aspects of expropriation cases in Louisiana, refer to Part I of Title 19 of the Louisiana Revised Statutes. Special statutes provide expropriation proceedings for governmental subdivisions, such as municipalities, generally, and particular municipalities and other public bodies.

  • What Limitations or Defenses Exist?

    Once the decision to proceed with a public project is made and the acquisition of property necessary for the project is determined by an authorized governmental entity, the grounds to challenge the condemnation are limited under Louisiana law. An owner who contests the public necessity for the taking, or contends that more property is sought to be taken than is needed, must typically file an answer within 20 days of the notice and petition of the expropriation (although some statutory time periods vary depending upon the taking authority). The landowner may also file a reconventional demand for additional damages and/or to contest the amount of compensation proposed by the expropriating authority.

    The trial judge determines whether there is a public necessity for the taking. For the landowner to meet his burden to show that the expropriating authority has abused its discretion in selecting the site to be expropriated, he/she must show that the authority acted in bad faith, without adequate determining principles, or without reason. Either party may demand a trial by jury to determine the amount of compensation.

  • What Constitutes a Public Purpose?

    Like the U.S. Constitution, Louisiana’s Constitution limits the use of expropriation to “public use,” a term which, over time, has come to include public purpose as well. Typical uses that satisfy a public use or purpose can include roads, parks, schools, other public buildings, or other projects or undertakings that serve a public good or need. In Louisiana, courts typically defer to legislative judgments of what constitutes a public use and consider whether the exercise of the expropriation power is rationally related to a conceivable public purpose.

  • How is Just Compensation Determined?

    The definition of just compensation under Louisiana law includes the full market value of the land taken, considering the land in the light of its highest and best use, along with other economic loss which he/she may prove is caused by the taking. Since the Louisiana Constitution requires that a landowner be compensated to the full extent of his loss, damages that might be awarded to achieve this result may include moving costs, relocation, inconvenience, and lost profits from the taking of a business enterprise. Landowners in Louisiana have the right to a trial by jury to determine compensation.

  • How Is Fair Market Value Defined?

    Louisiana courts define fair market value as the price that informed and willing buyers and sellers would reach under usual and ordinary circumstances. In expropriation cases, the date of taking is typically the date that the suit is filed, and it is on this date that the value of the property must be determined. Because fair market value is driven by both the “valuation date” to be applied and the “highest and best use” of the property, both elements are important in the value determination. This approach examines the worth of the land in light of the highest, best, and most profitable use to which it may be reasonably put in the near future by reason of its location, topography, and adaptability. A proposed highest and best use must not be speculative but reasonably likely to occur in the not too distant future.

  • What About Recovering Damages to Remaining Property?

    Under Louisiana law just compensation includes diminution in value (i.e., damages) to an owner’s remaining property. When the expropriating authority has taken only part of the landowner’s property for public purposes, the landowner is entitled to compensation for the full market value of the parcel taken and any damages which may have been suffered to the land which was not taken, along with any other economic loss which he may prove is caused by the taking. These damages to the land not taken are called “severance damages,” describing the damage to the remaining property by the severance of the land taken from that remaining property. Severance damages to the remaining land are measured by the difference between the market value of the remaining property immediately before and immediately after the taking. Moreover, in Louisiana, a property owner is entitled to claim damages for business loss caused by the public project on the theory that Louisiana law requires that a landowner be compensated “to the full extent of his loss,” which means that he must be restored to a financial position equal to that which he enjoyed prior to the expropriation.

    Louisiana law also provides that a landowner with property adjacent to expropriated property, but is not actually taken, may suffer an economic loss. For the landowner to recover, this economic loss must be physical in nature and a direct result of the expropriation of the adjacent property.

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

    Where the landowner elects to challenge the amount of compensation offered by the authority initiating the taking, attorney’s fees are not specifically required by the Louisiana Constitution. The award of attorney’s fees is left to the discretion of the trial court. However, where the highest amount of compensation offered to the landowner is less than the compensation awarded for the property and any severance damages, the court may award reasonable attorney’s fees (La. R.S. 19:8). Attorney's fees are also recoverable if it is determined that the state does not have the right to condemn the property or if the expropriating authority abandons the proceeding (La. R.S. 19:201). Furthermore, in Louisiana, landowners are entitled to recover their litigation costs and expert fees. The award of costs is authorized by overlapping statutory and codal provisions: La. R.S. 13:5112, which provides for the discretionary award of costs in favor of the successful party in a suit against the state or a political subdivision; and La. C.C.P. art. 1920, which provides, generally, that costs are to be paid by the party cast in judgment, unless the court, in equity, rules otherwise.

REFERENCES AND LINKS

Louisiana

Smith & Fawer, LLC
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170
Tel:(504) 525-2200 | Fax:(504) 525-2205
rasmith@smithfawer.com | www.smithfawer.com

Randall Smith has earned a reputation as an assertive, creative, and focused trial counsel. In addition to his law practice, Randy has been an Adjunct Professor of Law at Loyola University’s School of Law, teaching annually for over 25 years.

Speaking Engagements

  • American Law Institute, Eminent Domain and Land Valuation Litigation 2019, “Building Your Case: Practical Suggestions on Working With Expert Witnesses in Eminent Domain,” Palm Springs, California, January 24, 2019
  • American Law Institute, Eminent Domain and Land Valuation Litigation 2018, “Practice Tips and Pitfalls for the Beginning Eminent Domain Lawyer,” Charleston, South Carolina, January 25, 2018
  • American Law Institute, Eminent Domain and Land Valuation Litigation 2017, “Exhibits in Eminent Domain: How to Make a Persuasive Case,” San Diego, California, January 26, 2017
  • The 19th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations by Tulane University School of Law and Vermont Law School, “The MRGO Litigation and Other Flooding Cases,” New Orleans, Louisiana, November 4, 2016
  • CLE International, Eminent Domain Current and Emerging Issues, “Eminent Domain Litigation Strategies: Successful Strategies for the Litigator,” Las Vegas, Nevada, September 30, 2016
  • 21st Annual Tulane Environmental Law & Policy Summit, “Taken by Storm: Climate Change and Property Takings,” New Orleans, Louisiana, February 20, 2016
  • American Law Institute, 2016 ALI-CLE Eminent Domain & Land Valuation Litigation and Condemnation 101 Courses, “Advice for Beginning Eminent Domain Trial Lawyers on How to Win a Case,” Austin, Texas, January 28, 2016
  • Loyola University College of Law Annual Family Law Conference, “Nuts and Bolts of Interdiction,” New Orleans, Louisiana, November 12, 2015
  • Louisiana Bar Association/Louisiana Judicial College, Louisiana Rising, Lessons in Leadership, Innovation, and Balance, “Expropriation: An Update,” Sandestin Golf & Beach Resort, Florida, June 10, 2015
  • NBI-CLE, “Eminent Domain, From Start to Finish Seminar,” Baton Rouge, Louisiana, May 20, 2015
  • American Bar Association, 29th Annual National Institute on White Collar Crime, Break Out Panel, “Practical Issues in White Collar Criminal Cases,” New Orleans, Louisiana, March 4, 2015
  • American Bar Association, 29th Annual National Institute on White Collar Crime, “Harboring Aliens: Easier for Employers to Commit than Congress Intended,” New Orleans, Louisiana, March 4, 2015
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Valuation of Temporary Construction Easements,” San Francisco, CA, February 6, 2015.
  • American Law Institute, Condemnation 101, “Tips and Traps for the Beginning Eminent Domain Trial Lawyer,” San Francisco, CA, February 5, 2015.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “The Attorney and Expert: Adjustment and Cost to Cure in Theory and Practice,” New Orleans, LA, January 23, 2014.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Condemnation Issues in the Aftermath of Natural Disasters: Case Studies in Louisiana and New Jersey,” New Orleans, LA, January 24, 2014.
  • American Law Institute, Condemnation 101, “Tips and Traps for the Beginning Eminent Domain Trial Lawyer,” New Orleans, LA, January 24, 2014.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Unique Eminent Domain and Appraisal Issues Caused by Floods and Oil Spills: Lessons Learned from Katrina and Other Disasters,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Voir Dire in an Eminent Domain Jury Trial,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Effective Closing Arguments in Eminent Domain Cases,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Creative Use of Exhibits and Demonstrative Evidence in Domain Mediations and Trials,” San Diego, CA, January 27, 2012.

Publications

“Louisiana Eminent Domain After Kelo and Katrina,” Louisiana Bar Journal, Feb/March 2006

Recent Boards and Committees

  • Chair of Board, Owners’ Counsel of America-current
  • Board Member, Hermes Beyond the Parade Foundation-current
  • Board Member, Lab School of Washington-currrent
  • Board Member, Southern Repertory Theatre – current
  • Board Member, Watering Hole Foundation-current
  • Board Member, Contemporary Arts Center of New Orleans (September 2016-September 2018)
  • Board Member and Chair, Canal Street Development Corp. (June 1994-January 2013)

Education

  • Yale University, J.D., 1982
  • Amherst College, B.A., 1978, (Phi Beta Kappa, 1977)

Bar Admissions and Memberships

  • Louisiana, 1983
  • U.S. District Court, Eastern, Western and Middle Districts of Louisiana, 1983
  • U.S. Court of Appeals, Fifth Circuit, 1983
  • U.S. Supreme Court, 1990
  • American Bar Association
  • Louisiana Bar Association
  • Louisiana Bar Foundation

Honors and Awards

  • AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®
  • Leadership in the Law, 2008, selected by New Orleans CityBusiness magazine
  • Named 1 of Top 50 New Orleans Attorneys by New Orleans CityBusiness magazine
  • Listed as one of the Top Attorneys in Louisiana by Louisiana Super Lawyers 2011 magazine

Randall Smith has earned a reputation as an assertive, creative, and focused trial counsel. In addition to his law practice, Randy has been an Adjunct Professor of Law at Loyola University’s School of Law, teaching annually for over 25 years.

Speaking Engagements

  • American Law Institute, Eminent Domain and Land Valuation Litigation 2019, “Building Your Case: Practical Suggestions on Working With Expert Witnesses in Eminent Domain,” Palm Springs, California, January 24, 2019
  • American Law Institute, Eminent Domain and Land Valuation Litigation 2018, “Practice Tips and Pitfalls for the Beginning Eminent Domain Lawyer,” Charleston, South Carolina, January 25, 2018
  • American Law Institute, Eminent Domain and Land Valuation Litigation 2017, “Exhibits in Eminent Domain: How to Make a Persuasive Case,” San Diego, California, January 26, 2017
  • The 19th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations by Tulane University School of Law and Vermont Law School, “The MRGO Litigation and Other Flooding Cases,” New Orleans, Louisiana, November 4, 2016
  • CLE International, Eminent Domain Current and Emerging Issues, “Eminent Domain Litigation Strategies: Successful Strategies for the Litigator,” Las Vegas, Nevada, September 30, 2016
  • 21st Annual Tulane Environmental Law & Policy Summit, “Taken by Storm: Climate Change and Property Takings,” New Orleans, Louisiana, February 20, 2016
  • American Law Institute, 2016 ALI-CLE Eminent Domain & Land Valuation Litigation and Condemnation 101 Courses, “Advice for Beginning Eminent Domain Trial Lawyers on How to Win a Case,” Austin, Texas, January 28, 2016
  • Loyola University College of Law Annual Family Law Conference, “Nuts and Bolts of Interdiction,” New Orleans, Louisiana, November 12, 2015
  • Louisiana Bar Association/Louisiana Judicial College, Louisiana Rising, Lessons in Leadership, Innovation, and Balance, “Expropriation: An Update,” Sandestin Golf & Beach Resort, Florida, June 10, 2015
  • NBI-CLE, “Eminent Domain, From Start to Finish Seminar,” Baton Rouge, Louisiana, May 20, 2015
  • American Bar Association, 29th Annual National Institute on White Collar Crime, Break Out Panel, “Practical Issues in White Collar Criminal Cases,” New Orleans, Louisiana, March 4, 2015
  • American Bar Association, 29th Annual National Institute on White Collar Crime, “Harboring Aliens: Easier for Employers to Commit than Congress Intended,” New Orleans, Louisiana, March 4, 2015
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Valuation of Temporary Construction Easements,” San Francisco, CA, February 6, 2015.
  • American Law Institute, Condemnation 101, “Tips and Traps for the Beginning Eminent Domain Trial Lawyer,” San Francisco, CA, February 5, 2015.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “The Attorney and Expert: Adjustment and Cost to Cure in Theory and Practice,” New Orleans, LA, January 23, 2014.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Condemnation Issues in the Aftermath of Natural Disasters: Case Studies in Louisiana and New Jersey,” New Orleans, LA, January 24, 2014.
  • American Law Institute, Condemnation 101, “Tips and Traps for the Beginning Eminent Domain Trial Lawyer,” New Orleans, LA, January 24, 2014.
  • American Law Institute, Eminent Domain and Land Valuation Litigation, “Unique Eminent Domain and Appraisal Issues Caused by Floods and Oil Spills: Lessons Learned from Katrina and Other Disasters,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Voir Dire in an Eminent Domain Jury Trial,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Effective Closing Arguments in Eminent Domain Cases,” Miami Beach, FL, January 25, 2013.
  • American Law Institute, Condemnation 101, “Creative Use of Exhibits and Demonstrative Evidence in Domain Mediations and Trials,” San Diego, CA, January 27, 2012.

Publications

“Louisiana Eminent Domain After Kelo and Katrina,” Louisiana Bar Journal, Feb/March 2006

Recent Boards and Committees

  • Chair of Board, Owners’ Counsel of America-current
  • Board Member, Hermes Beyond the Parade Foundation-current
  • Board Member, Lab School of Washington-currrent
  • Board Member, Southern Repertory Theatre – current
  • Board Member, Watering Hole Foundation-current
  • Board Member, Contemporary Arts Center of New Orleans (September 2016-September 2018)
  • Board Member and Chair, Canal Street Development Corp. (June 1994-January 2013)
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