Owner Testimony And Valuation Opinions In An Eminent Domain Case

This Article is written by Owners’ Counsel of America for general informational purposes only. It is intended to assist landowners in understanding some of the basic issues that relate to a property owner providing testimony and valuation opinions in an eminent domain proceeding. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an OCA lawyer or other experienced eminent domain attorney on the matters covered herein.

As a Landowner Why Should I Consider Testifying in Court or Possibly Giving An Opinion of Value?

As the owner of property being condemned, you likely know more about the property’s characteristics and attributes, than any other person. Of course, we know that not all landowners are equally informed about their property and property rights. But in situations where the landowner is knowledgeable and informed, the landowner can be a strong, persuasive and credible witness on both the attributes of the property itself and possibly on the issue of its’ value. That is why almost every jurisdiction, subject to certain evidentiary standards being met, allows a landowner to give testimony and a valuation opinion in court when faced with the taking of his or her property.

What Do You Mean by the Property’s Characteristics and Attributes?

To be a good, credible and effective witness, a landowner should be able to intelligently address the key factors that contribute to the property’s value. While a testifying landowner is not expected to be a valuation expert (like an appraiser, for instance), he or she is expected to know certain information about the property that would be relevant to its’ value and marketability. The range and type of information needed to provide a credible opinion differs from property to property, but some of the key factors that are often cited and discussed include the property’s location, access, size, terrain, topography, utilities and infrastructure, zoning, density, building dimensions, etc.

Property owners who wish to testify as to the value of their property in an eminent domain proceeding need to make sure that they are equipped and prepared to opine on all of the relevant factors and variables that may impact its value, whether positively or negatively.

What Should A Landowner Expect Once A Decision Has Been Made to Give an Opinion of Value?

As a landowner, if you decide to become a testifying witness and also to provide an opinion of value in a condemnation proceeding, be prepared for the focus of the attention to be directed towards you. For instance, the government’s lawyer will want to know all about the opinion you plan to give and the basis (or reasoning) behind the opinion. Your own lawyer may be required to disclose your opinion in writing, as part of the discovery process that takes place prior to the actual valuation trial. Additionally, you may be required to submit to a deposition, which means giving sworn testimony before a court reporter about your opinion and its basis, while being asked a series of questions by the government’s lawyer.

Finally, you will be required to testify about your opinion in a courtroom during the trial, where you will be subjected to cross-examination by the lawyer for the condemning entity, as he or she seeks to expose any weaknesses or flaws in your valuation testimony.

While all of this can be intimidating for landowners not familiar with how litigation works, and for some even a reason not to testify at all, you should not let these practices dissuade you from testifying, particularly if you believe that your testimony is important and of value. A good condemnation lawyer will know how to prepare you for your deposition, for your trial testimony and for the cross-examination by the government’s lawyer. The important thing is that you have confidence in your testimony and, as discussed below, that it is well supported and well founded.

What Makes a Landowner’s Opinion of Value Well Supported?

For an owner to state that his property is worth a certain dollar amount simply because that is what the owner believes he can get for the property is of minimal relevance or value to those having to decide the issue of compensation. Moreover, in many jurisdictions, such unsupported testimony would likely be deemed inadmissible.

While landowners are not expected to be experts in the valuation of property like appraisers are, in most jurisdictions their opinion of value must still be well grounded and supported. Thus, if you have knowledge of properties that are comparable to your property and what those properties sold for, you can use that information to inform your own opinion of value. Similarly, if you have any experience in developing and/or selling properties yourself, that experience can also be used to inform your opinion. If you have actual land use plans showing how you intend to develop the property, those too can inform your valuation testimony.

Remember that landowner testimony is most effective when the owner can share intimate details and information about the property based on years of familiarity and ownership. Information that highlights unique attributes or one of-a-kind aspects about the property is especially impactful, as it serves to distinguish the property from others that may be on the market. The important thing is that an owner’s opinion should be based on information that is objective, rather than subjective; and information that is well founded and supported, rather than conjectural or speculative.

Are Landowners Precluded From Considering Certain Matters in Formulating Their Opinions of Value?

Yes. While landowners are not necessarily considered to be expert witnesses on value, often they are still held to the same evidentiary standards that expert witnesses are held to when it comes to what can be relied on in giving an opinion of value. So, for instance, in most jurisdictions, landowners cannot rely on ‘offers’ or ‘listing prices’ when giving a valuation opinion. Nor can they rely on ‘forced’ sales, meaning sales made to a condemning agency under the threat of condemnation. A landowner wishing to give an opinion of value in a condemnation case needs to carefully consult with his or her condemnation attorney to make sure that the opinion is based on proper factors to avoid the possibility of a court ruling that the opinion is incompetent or inadmissible.

Can You Provide An Example of a Particularly Helpful Landowner Testimony?

Yes. In Sabal Trail Transmission, LLC v. 3.921 Acres of Land, No. 18-11836 (11th Cir. 2020), OCA Florida Member Andrew Brigham represented Chuck and Jan Sunderman against a pipeline company that sought to bifurcate their 40 acre tract with a 1.5 acre easement for a natural gas pipeline, all the while claiming that the project would cause no damages, other than for bifurcation, because the pipeline would be buried 4 feet underground. At trial, the appraiser for the pipeline company opined that the total compensation for the taking should be $ 56,800.

The owner, Jan Sunderman, was also called as a witness on value and damages. Ms. Sunderman testified that the larger 860 acre parcel (of which the 40 acre parcel was a part) had been owned by her family for 90 years as a citrus farm. However, after multiple freezes had destroyed the farming operation, it was now being held for investment purposes. Ms. Sunderman testified that between 1990 and 2016, she personally had sold some 25 lots for rural residential development, establishing a value of $18,000 per acre. Ms. Sunderman also testified that the pipeline would impact the development of the property into subdivided lots, thereby causing damages in addition to those resulting from the bifurcation. Based upon various calculations, she arrived at $360,000 as her opinion of just compensation. The jury ultimately awarded the Sundermans $309,500, which award was subsequently upheld on appeal.

As the Landowner, Won’t My Opinion Be Discredited?

Unfortunately, one of the typical arguments that government lawyers like to make when confronted with an owner seeking to testify as to the value of his or her property is that the owner is a biased witness who only wants to inflate the value of the property to increase the amount of just compensation. However, a good condemnation lawyer will know how to overcome or minimize this type of credibility argument.

Whenever an owner seeks to give a valuation opinion in an eminent domain proceeding, the important thing is that there be a good foundation for the landowner’s opinion testimony, that it be well supported, and to the extent possible, that it be corroborated by independent facts, other evidence, and even the testimony of other witnesses. All of these factors can help undermine an attempt by the government’s lawyer to discredit the owner’s testimony.