June 30th, 2016 — By — In Articles
Dictionary of Key Terms
Below are general definitions of key terms that are often used in eminent domain and other taking cases. Please note that the precise definition of any of the following terms may differ depending upon the state or jurisdiction applicable to the relevant matter.
The right of a condemning authority to withdraw or dismiss a condemnation action after it has been filed, usually because the condemnor has determined that it does not want to pay the final just compensation award. In many states, condemning authorities have an automatic right to abandon a condemnation action, meaning they do not have to seek the approval of the court to do so. Other states may impose specific retrictions or conditions on the right of abandonment, including even that the condemnor must reimburse the landowner for various out of pocket expenses and attorney fees. Still other states will not allow a condemning entity to abandon a condemnation action under specific circumstances, such as when a statute precludes abandonment, or the landowner can show that it reasonably relied to its detriment on the condemnation case going forward, or the condemnor has taken immediate possession of the landowner's property. To learn more about the concept of abandonment read OCA's Featured Article entitled, "Can The Government Abandon An Eminent Domain Taking?"
Answer or Responsive Pleading
A written pleading filed by the landowner responding to the Petition or Complaint of the condemning authority in which the landowner answers each allegation by either denying, admitting or admitting in part and denying in part. The Answer generally also identifies the landowner’s legal defenses to the taking.
In situations where a public project may bestow benefits on a landowner’s remaining property, the condemning authority may seek to quantify such benefits and then use them to reduce the total amount of just compensation to be paid. In most jurisdictions benefits must be deemed “specific” in nature, rather than “general” in order to reduce just compensation. While benefits are typically used to reduce damages to remaining property, in some jurisdictions benefits may also be used to reduce the compensation paid for the property being taken.
Burden of Proof
A term that defines the duty placed upon a party to prove or disprove by appropriate evidence all disputed facts in a case necessary to prove a claim. In a traditonal eminent domain case most disputed facts relate to the amount of just compensation to be paid for the taking. Depending upon the jurisdiction where the case is tried, the burden of proof on the issue of compensation may be on either the landowner or the condemning authority. Another issue where the burden of proof may be important relates to whether the property is being taken for a proper public use or purpose. In some states, the condemning authority bears the burden of proof on this issue. The standard of proof refers to the amount of evidence the party needs to provide in order for the judge or jury to reach a particular determination. In most eminent domain cases, the burden of persuasion that applies is called “a preponderance of the evidence.”
Business Losses or Business Damages
Compensation claims relating to the negative impact that an eminent domain taking may have on a particular business or business operation. Although most states currently do not allow a landowner to recover business damages or losses as part of the just compensation that must be paid for a taking, a few states do provide for such recovery. To find out more about each state's position on business impact claims talk with an OCA lawyer or view the state laws under Locate an OCA Lawyer.
Commission or Board
Some jurisdictions allow the amount of just compensation to be determined by a body of individuals sometimes called a Commission or a Board. Commissioners are generally appointed by the court. In most jurisdictions, some type of investigation or voir dire process is undertaken to ensure that the Commissioners are independent, impartial and unbiased as it concerns the parties and issues in the case.
A valuation methodology generally used by appraisers in determining fair market value that involves considering recent selling prices of properties similar to the subject property in terms of a number of factors, e.g. location, use, size, zoning, geography, etc. The comparable sales approach is sometimes called the market approach. To learn more about comparable sales in an eminent domain case, read "A Landowner's Guide to Understanding the Comparable Sales Approach" under Featured Articles.
Damages or Severance Damages
Damages which may result when only part of an owner's property is condemned. The purpose of damages is to compensate an owner for any loss in value of the remaining property due to the acquisition. Damages are also sometimes referred to as 'severance' damages or 'damages to the remainder.' In many condemnation cases damages to the remainder can exceed the value of the property being taken. When there are wide disparities between the condemning authority's valuation position and that of the landowner's, oftentimes the disparity is attributed to a difference of opinon on the existence, degree and amount of damages caused by the acquisition.
Date of Value
Just compensation is to be determined as of a specific date, which is generally referred to as the “date of value.” The condemnation statues in each jurisdiction will typically address how the “date of value” is to be determined or established.
The legal challenges that a landowner may mount against the condemning authority's condemnation action. In an eminent domain case typical landowner 'defenses' include assertions that: the condemning entity lacks the legal authority to condemn the property, the condemnation is not for a proper public use or purpose, there is a lack of necessity for the taking, and/or the condemnor has not negotiated in good faith for the property being taken prior to filing the condemnation action. The ultimate success and viability of these are other defenses that the landowner may raise against the condemnation action depends largely on the specific facts of the case and the law applicable in the jurisdiction where the case is being tried.
The taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. In a condemnation case depositions are typically taken of the landowner, the appraisers, and other expert witnesses. For more information about a property owner's deposition, read "The Landowner's Deposition in An Eminent Domain Case" in the Featured Articles section.
A pre-trial procedure in a condemnation case in which each party, through the rules of civil procedure, seeks to obtain evidence from the other party by means of depositions or various pleadings, such as interrogatories, requests for production of documents, and requests for admissions.
A legal interest in property that gives the beneficiary the right to use the property for a specific use or purpose. The scope and nature of the easement is generally defined by its written terms. While the easement holder is entitled to use the property in accordance with the terms of the easement, legal title to the land itself remains with the owner. Easements can be written to be exclusive, non-exclusive, temporary and permanent. Depending upon the type of easement, the location of the easement, and the terms defining its' usuage, easements can either have minimal impacts on the property they encumber or extensive impacts. See the separate definition of a Temporary Easement herein.
“Eminent domain” (also referred to as “condemnation” or “appropriation” in some states) is the government’s power to take private property subject to payment of just compensation. Federal, state and local government agencies can exercise the power of eminent domain. In certain circumstances, government agencies can grant private companies the authority to exercise eminent domain as well.
Fair Market Value
The price at which the property would sell or change hands on the open market between a willing buyer and a willing seller, neither being under any compulsion or duty to buy or to sell.
A property rights term used to describe the maximum ownership interest in real property that is allowed under the law. The fee interest is also sometimes called the fee simple interest.
The Fifth Amendment to the U.S. Constitution creates a number of rights relevant to both criminal and civil legal proceedings. However, most relevant to takings law is the portion of the amendment which reads: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." These words, which are echoed in many state constitutions, provide citizens with certain fundamental rights when it comes to their property and property rights and ensures that private property cannot be taken without due process of law, without a proper public use being met, and without the payment of just compensation.
Good Faith Offer
The valuation offer made to the property owner by the condemning authority as part of the negotiations that occur prior to the filing of the condemnation action. Most state statutes require that the condemnor's offer and the negotiations which follow meet a good faith standard. One way condemnors may seek to show that the offer is made in good faith is by having it supported by an independent appraisal. To learn more about negotiations in an eminent domain case, read "Negotiating With the Condemning Entity From a Position of Strength and Knowledge" in the Featured Article under Landowner Resources.
Highest and Best Use
In most jurisdictions landowners are not limited to a value based on the current use of their property in establishing just compensation. Instead, the property is to be valued considering the most advantageous use, which is often referred to as the “highest and best use” of the property. To meet the standard of “highest and best use” the use must be: (1) physically possible; (2) legally permissible; (3) financially feasible; and (4) maximally productive. See also a "Landowner's Guide to Understanding the Concept of Highest and Best Use" in Featured Articles under Landowner Resources.
Immediate Possession a/k/a Quick Take
While the government typically must pay just compensation before condemning private property, in certain circumstances state laws authorize a “quick-take” procedure which allows agencies to take private property prior to the final determination of just compensation. In most cases, the taking authority must pay its estimate of just compensation to the owner upon acquiring the property. The parties will then follow specific state procedures to determine the final award of compensation. This may include a bench trial before a judge or a hearing before impartial commissioners who will determine the amount of compensation. Or, in some jurisdictions, a jury will be empaneled to hear evidence and determine the amount of compensation due to the owner.
Instructions or Jury Instructions
Statements of the law that are given by the court to a jury at the conclusion of the valuation trial, but before closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations. Most states have adopted specific instructions that are to be given in eminent domain cases.
Government agencies must follow certain procedures in order to exercise the power of eminent domain. When they fail to follow these procedures and take private property without payment of just compensation, property owners can seek to enforce their right to just compensation under the Fifth Amendment through an action for “inverse condemnation.” To learn more about the concept of inverse condemnation read OCA's Featured article entitled "Inverse Condemnation-A Short Primer."
Under the U.S. Constitution and state laws, in order to condemn private property, the government must pay the property owner “just compensation.” However, determining what amount of compensation is “just” isn’t always easy, and property owners will often need to take legal action to enforce their right to just compensation.
A determination (usually made by an appraiser) of what constitutes the extent of the owner's property that should be the focus of the appraisal assignment for purposes of determining the value of the property being taken and damages to any remaining property. Assessing what constitutes the "larger parcel" usually involves an analysis of several factors, the most common of which are: unity of ownership, unity of use, and physical contiguity. The "larger" parcel test can sometimes create wide discrepancies in valuation conclusions if the appraisers disagree on what the "larger parcel" should be.
A notice filed by the condemning authority with the governmental office charged with housing deeds and other property documents. The recorded lis pendens notifies all interested parties that the owner's property is in the process of being acquired for a public use so that anyone dealing with the property is aware of the pending action. Generally, the filing of the lis pendens is one of the first indicia that the condemnor seeks to exercise control and authority over the landowner's property. When the eminent domain proceeding is completed, a condemning authority will usually file a release of the lis pendens.
Motion in Limine
A motion filed by a party in a condemnation case which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at trial. The purpose of the motion is to prevent the interjection of matters which are irrelevant, inadmissible or prejudicial.
A determination made as to whether there is a 'need' or 'necessity' to take the property which is the subject of the condemnation action. The extent to which courts and judges will allow an inquiry into the 'necessity' for the taking varies from state to state. In some states a landowner may challenge the condemnor's necessity finding; other states may allow such an inquiry, but only if bad faith or fraud can be proven; still other states may not allow any inquiry into the necessity for taking the property.
In most jurisdictions, the property owner in a condemnation case is entitled to provide an opinion of value of his or her property. Whether an owner should give such an opinion is an important topic of discussion between the owner and the owner's eminent domain cousel. To understand more about this issue read "Owner Valuation Testimony in an Eminent Domain Case," under Featured Articles under Landowner Resources.
Petition or Complaint
A written pleading filed by the condemning authority to initiate the filing of the condemnation action against the landowner. The Petition or Complaint generally includes the legal basis and authority for filing the case, as well as other relevant facts and details about the parties, the property, the project necessitating the taking, and the nature and scope of the taking itself.
The capacity of the various states to regulate certain matters and behaviors in order to enforce order for the betterment of the health, safety, and general welfare of the state's inhabitants. With respect to property rights, sometimes "police power" actions and regulations can go too far, in which event they may constitute a taking under the Fifth Amendment to the U.S. Constituion for which just compensation must be paid.
In most jurisdictions, just compensation for the property being taken by eminent domain includes the payment of "post-judgment interest" by the condemning authority. This interest is applied to the final just compensation award from the date it is rendered or entered as a judgment against the condemning authority and the date of actual payment. The percentage of interest that a landowner may be entitled to as post-judgment interest may differ from state to state. See also "Pre-Judgment Interest."
In most instances a condemnor will not be held liable for any damages a propery owner may experience under the threat of condemnation or during the pre-planning stage that may be associated with a public project and the consideration of which properties to acquire for its construction. However, in cases where the threat of condemnation has lingered over property for an extended period of time (sometimes called a condemnation "cloud") causing significant uncertainty and damages, a property owner may be entitled to bring a cause of action for "pre-condemnation" damages or inverse condemnation. Such cases are heavily based on the facts and consultation with an experienced eminent domain attorney is recommended.
In most jurisdictions, just compensation for the property being taken by eminent domain includes the payment of "pre-judgment interest" by the condemning authority. This interest is generally applied to the difference between what was offered or made available to the landowner by the condemnor prior to the commencement of the case and the actual value of the property, as determined at trial. The percentage of interest that a landowner may be entitled to as pre-judgment interest may differ from state to state. See also "Post-Judgment Interest."
Project Influence Rule
A rule or standard to be applied in a condemnation case which refers to a positive or negative change in the market value of the property being condemned as a consequence of the public project for which all or a part of the property is being taken.
The government can only condemn private property and authorize the exercise of eminent domain for a “public purpose” or “public use.” Traditionally, this has meant for purposes such as widening roads, utility projects, building schools and other government buildings, and conservation. However, over the past decade, the definition of what constitutes a “public use” has widened substantially, to include, in some cases, private redevelopment projects and increased tax revenues.
An evidentiary standard that is generally applied in determining the “highest and best use” of property when not all relevant factors exist as of the date of value. For instance, if the property is not zoned consistent with its claimed highest and best use, but there is a reasonable probability that it would be rezoned for that use, that highest and best use may be admissible. Similarly, if the property has not received all necessary permits for a particular use, but there is a reasonable probability that the permits would be issued, the permitted use may be admissible to establish value.
Physically taking private property is not the only way that the government can deprive property owners of their rights. When a government agency enacts a zoning ordinance or other regulation that diminishes the economic value of a piece of property, this is known as a “regulatory taking.” Like physical takings, regulatory takings require payment of just compensation.
Remainder or Residue
That part of the landowner’s property which remains with the landowner after the property being taken by the condemnor. To qualify as a remainder parcel, generally there needs to be a unity of ownership, use, and physical contiguity between the remainder and the property being taken. Jurisdictions differ on the factual basis for determining whether these three unity factors exist.
An easement taking by a condemning authority that allows usuage of the landowner's property for a defined period of time, at the end of which the easement terminates and full usuage returns to the landowner. Like other easement interests, the nature, scope and duration of a temporary easement is defined by its' written terms. Depending upon the language and terms used, as well as the location of a temporary easement, it can either have minimal impacts on property or extensive impacts. As a result, it is important that any temporary easement being requested by a condemning authority be evaluated properly so that the compensation for its use can be appropriately determined. Based on the potential impacts of a temporary easement, it is not uncommon for the landowner or the landowner's attorney to seek to negotiate the terms of the easement with the condemning authority. Temporary easements are generally, but not always, used to aid in the construction of the condemnor's project, in which event they are sometimes called Temporary Construction Easements.
Any portion of the owner's property remaining after a partial acquisition which is of little to no value due to its size, shape or condition. In some jurisdictions uneconomic remnants are required to be taken by the condemning authority on the basis that they constitute a total taking of the owner's property.
Additional Information on Eminent domain
Our website is full of resources for individuals and businesses threatened with the loss of their private property rights. For more information on the law of eminent domain and inverse condemnation, you can read:
- Calculating Just Compensation
- Eminent Domain vs. Inverse Condemnation: What’s the Difference?
- Property Owners’ Frequently Asked Questions about Eminent Domain
- Understanding Your Rights in Inverse Condemnation and Regulatory Takings Cases
- When Can Property Owners Challenge Eminent Domain?
- Can I Afford to Hire an Eminent Domain Attorney?
Speak With an Eminent Domain Lawyer at Owners’ Counsel of America
Owners’ Counsel of America (OCA) is a network of leading eminent domain lawyers throughout the United States. If the government is attempting to take your property, we encourage you to contact an OCA lawyer in your state for a free consultation. Locate your OCA lawyer online or call us at (877) 367-6963 to connect with an eminent domain lawyer today.