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Nevada's Eminent Domain Laws and Property Rights

Property Rights in the State of Nevada

Over the last 15 years, eminent domain law in the state of Nevada has undergone significant change. The U.S. Supreme Court’s landmark decision in Kelo v. City of New London, combined with the Nevada Supreme Court’s decision in City of Las Vegas Downtown Redevelopment Agency v. Pappas, 76 P.3d 1 (2003) ushered in a People’s Initiative to Stop the Taking of our Land, also known as the Pistol Amendment. The Pistol Amendment is now part of the Nevada Constitution under Art. 1, § 22. As a result, Nevada now provides more protections to private landowners in condemnation proceedings then almost any other state. Pursuant to Art. 1, § 22:

1. Public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party. In all eminent domain actions, the government shall have the burden to prove public use.

2. In all eminent domain actions, prior to the government’s occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner’s election, to a separate and distinct determination by a district court jury, as to whether the taking is actually for a public use.

3. If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. If private property is taken for any proprietary governmental purpose, then the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken.

4. In all eminent domain actions, just compensation shall be defined as that sum of money, necessary to place the property owner back in the same position, monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.

5. In all eminent domain actions where fair market value is applied, it shall be defined as the highest price the property would bring on the open market.

6. Property taken in eminent domain shall automatically revert back to the original property owner upon repayment of the original purchase price, if the property is not used within five years for the original purpose stated by the government. The five years shall begin running from the date of the entry of the final order of condemnation.

7. A property owner shall not be liable to the government for attorney fees or costs in any eminent domain action.

8. For all provisions contained in this section, government shall be defined as the State of Nevada, its political subdivisions, agencies, any public or private agent acting on their behalf, and any public or private entity that has the power of eminent domain.

9. Any provision contained in this section shall be deemed a separate and freestanding right and shall remain in full force and effect should any other provision contained in this section be stricken for any reason.

Meet OCA's Nevada Attorney

Kermitt L. Waters

Kermitt Waters has defended landowners across Nevada and the United States for over 40 years. Practicing primarily in the areas of eminent domain and property rights law, Kermitt has defended hundreds of landowners in condemnation proceedings. In Nevada, Kermitt has tried over 50 eminent domain trials where his defense of landowners has resulted in landmark opinions protecting private property rights.

A SUMMARY OF NEVADA’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?

    Essentially, the State of Nevada, its political subdivisions, agencies, and in some limited circumstances private agencies or entities have the power of eminent domain.

  • What Are the Legal Requirements for Exercising the Power?

    Property in Nevada can only be taken for a public purpose upon the payment of just compensation. Chapter 37 of the Nevada Revised Statutes (NRS) sets forth the process and procedures for initiating a condemnation action.

  • What Limitations or Defenses Exist?

    No judgment of condemnation shall be entered unless the court first finds that:
    a. The use to which the property is to be applied is a public use;
    b. The property is necessary to such public use; and
    c. If the property is already appropriated to some public use, the public use to which it is to be applied is a more necessary public use.

  • What Constitutes a Public Purpose?

    NRS 37.010 identifies a long list of “public uses” for which eminent domain may be exercised. However, as a result of Art. 1, § 22 in the Nevada Constitution, public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party. In all eminent domain actions, the government shall have the burden to prove public use.

  • How is Just Compensation Determined?

    In all eminent domain actions, just compensation shall be defined as that sum of money, necessary to place the property owner back in the same position, monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.

  • How Is Fair Market Value Defined?

    Under Nevada law, fair market value includes the highest price the property would bring on the open market. Moreover, as a result of Art. 1, § 22 in the Nevada Constitution, both the taken and damaged property must be valued at its highest and best use, without considering any future dedication requirements imposed by the government. In situations where private property is taken for any proprietary governmental purpose, then the property must be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken.

  • What About Recovering Damages to Remaining Property

    In all eminent domain actions, just compensation includes that sum of money, necessary to place the property owner back in the same position, monetarily, without any governmental offsets, as if the property had never been taken. This would, of course, include damages to any remaining property as well. Moreover, in State v. Cowan, 210 P.3d 769 (Nev. 2007) the Nevada Supreme Court held that lessees were entitled to compensation for destruction of their business as an exception to the undivided-fee rule. The court also held that business goodwill, rather than lost profits, was the appropriate measure of damages for the complete destruction of the lessees’ business.

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

    The government agency is usually required to pay interest on any award of “just compensation.” The property owner is also entitled to recover costs actually incurred which are related to and part of the litigation. The property owner’s attorneys’ fees may also be recoverable in certain situations.

Nevada

Law Offices of Kermitt L. Waters
704 South 9th Street
Las Vegas, NV 89101
Tel:(702) 733-8877 | Fax:(702) 731-1964
kermitt@kermittwaters.com | www.kermittwaters.com

Born and raised in West Texas, the son of ranchers, Kermitt developed an appreciation for private property at a young age. In 1968, he moved to Nevada and began working for the Nevada Attorney General where he fought the utility companies’ demands for fee increases during the early 1970’s. In 1972, Kermitt went into private practice and has been defending landowners in Nevada and across the country ever since.

Kermitt’s years of expertise defending landowners provided invaluable insight when he drafted the Nevada Property Owner’s Bill of Rights, a voter initiative to amend the Nevada State Constitution. Under Nevada law, this constitutional amendment also known as PISTOL (People’s Initiative to Stop the Taking of Our Land), required voter approval in two consecutive elections, 2006 and 2008. Upon voter approval in 2008, the Nevada Property Owner’s Bill of Rights established certain restrictions on the use of eminent domain to further protect the rights of Nevada landowners. Kermitt continues to effect changes to eminent domain laws in Nevada to further protect landowners’ rights in condemnation actions and insure the fair treatment of property owners and payment of just compensation for property taken in eminent domain.

Speaking Engagements

  • American Law Institute-American Bar Association, Eminent Domain and Land Valuation Litigation, “How to Win the Unpopular Case,” January 26, 2012, San Diego, CA.
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Giving the Judge and Jury the Big Picture in a Condemnation Case,” February 18, 2011, Coral Gables, FL.

Education

  • Texas Southern University, LL.B, J.D., (1965)

Bar Admissions and Memberships

  • Nevada
  • Texas
  • Clark County Bar Association
  • American Bar Association

Honors and Awards

  • Recognized by Super Lawyers for Eminent Domain Law

Born and raised in West Texas, the son of ranchers, Kermitt developed an appreciation for private property at a young age. In 1968, he moved to Nevada and began working for the Nevada Attorney General where he fought the utility companies’ demands for fee increases during the early 1970’s. In 1972, Kermitt went into private practice and has been defending landowners in Nevada and across the country ever since.

Kermitt’s years of expertise defending landowners provided invaluable insight when he drafted the Nevada Property Owner’s Bill of Rights, a voter initiative to amend the Nevada State Constitution. Under Nevada law, this constitutional amendment also known as PISTOL (People’s Initiative to Stop the Taking of Our Land), required voter approval in two consecutive elections, 2006 and 2008. Upon voter approval in 2008, the Nevada Property Owner’s Bill of Rights established certain restrictions on the use of eminent domain to further protect the rights of Nevada landowners. Kermitt continues to effect changes to eminent domain laws in Nevada to further protect landowners’ rights in condemnation actions and insure the fair treatment of property owners and payment of just compensation for property taken in eminent domain.

Speaking Engagements

  • American Law Institute-American Bar Association, Eminent Domain and Land Valuation Litigation, “How to Win the Unpopular Case,” January 26, 2012, San Diego, CA.
  • American Law Institute-American Bar Association, Condemnation 101: Making the Complex Simple in Eminent Domain, “Giving the Judge and Jury the Big Picture in a Condemnation Case,” February 18, 2011, Coral Gables, FL.
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