Property Owners’ Frequently Asked Questions About Eminent Domain
When you learn that your property may be condemned, there are many questions that you will have. Below are some of the more common questions that landowners often have with general answers that we hope are helpful. Note that the answers provided are for basic informational purposes only, and should not be construed as legal advice. For anyone wanting to have a fuller discussion of the answer to any particular question as it pertains to a given set of facts, you are advised to speak with an OCA lawyer or other eminent domain attorney.
What is eminent domain or condemnation?
Eminent domain is the power of the government to take private property belonging to its citizen’s for public use, provided just compensation is paid to the owner. It can also be called “condemnation” or, in some states, “expropriation.”
If my property is being “condemned” by a governmental entity based on a public nuisance assertion or that the condition constitutes a threat to the public health, welfare and safety is that the same as condemnation using the eminent domain power?
No. Property can also be “condemned” or taken by governmental entities, not because it is needed for a public project, but because it may constitute a “public nuisance,” meaning its’ physical condition has been deemed a hazard to the public health, welfare and safety. Properties that are not in compliance with local building or land use codes may also be targeted for government acquisition. In such situations, the government may seek to take the property and demolish the buildings without payment of compensation. In situations like these there is typically a very specific process that the governmental entity must follow before the taking can occur. This process usually includes providing adequate advance notice to the landowner and a reasonable opportunity to correct any defects or violations. Any landowner facing the taking of his or her property under these circumstances is encouraged consult with a real estate or land use attorney knowledgeable about the legal process in the applicable jurisdiction. Note that OCA lawyers do not typically handle these types of “condemnation” cases. See Matters We Do Not Handle.
Who can exercise the eminent domain power?
Local, state and the federal government have the power of eminent domain. The government’s power of eminent domain extends to government agencies, such as your Public Works Departments, Department’s of Transportation and the U.S. Forest Service. Some private companies or individuals may also be granted the power to condemn private property to complete certain projects intended to benefit the public. These private companies may include redevelopment authorities, oil and gas companies, railroads or other privately-owned utility companies and providers. To understand which entities and authorities may have the power to condemn in your state, visit the different state laws under Locate an OCA Lawyer.
What’s the difference between eminent domain and inverse condemnation?
There are two types of government acquisitions or “takings” of private property. One form of property acquisition includes the government’s exercise of its eminent domain power to force the sale of private property for a public project or use. The use of the eminent domain power to take property is referred to by many terms and varies from state to state as well as internationally. The acquisition may be referred to as a “condemnation” or “direct condemnation,” “expropriation,” “appropriation” or simply a “direct taking.” In a direct condemnation or direct taking scenario, the government agency or other entity using the power of eminent domain follows certain procedures to acquire the property, establish the amount of just compensation due for the property taken and provide payment of that compensation to the owner.
The second type of taking is referred to as inverse condemnation. A taking of property by inverse condemnation occurs when the government acquires or appropriates private property without following eminent domain procedures and without paying just compensation. An inverse condemnation taking may or may not be a physical acquisition of private property. If land has been acquired or possessed by the government or other condemning authority without following the proper procedures, the landowner has the right to file an inverse condemnation claim against the government to recover just compensation for the property taken. To learn more about inverse condemnations and how they differ from an eminent domain action read “Inverse Condemnation-A Short Primer” in Featured Articles Under Landowner Resources.
What about a regulatory taking of property? What does that mean?
When government regulation significantly burdens private property the inverse condemnation may be referred to as a “regulatory taking.” Most importantly, in an inverse condemnation or regulatory taking scenario the government has failed to pay just compensation for the private property rights that have been taken.
What should I tell the government real estate appraisers?
Very little, if anything. They are not interested in you receiving the highest possible value for your property. They are hired by the governmental agency seeking to acquire your property. Consult with an experienced eminent domain attorney before giving any information to the government appraisers.
Should I discuss the value of my property with a government representative?
We recommend that you consult with an experienced condemnation attorney first before discussing anything with the government representative, including your own opinion of value. Remember that your compensation also includes damages to your remaining property and you may not be fully aware of the extent of damage and injury that the government’s project may be causing.
What information and documents should I provide the government if they are looking to condemn my property?
As a general rule, do not supply copies of leases, expense records, profit and loss statements, prior appraisals or similar documents to the government or its representatives without first consulting with an experienced condemnation lawyer.
Should I let the government conduct any environmental or other tests of my property?
No. Talk to an experienced condemnation attorney first. Some of the tests the condemning authority might wish to do are routine and not invasive. However, some tests may require boring large holes into the ground or establishing monitoring wells and may disrupt your use and enjoyment of the property. Further, potential contamination underground or in a building can further complicate the eminent domain proceedings and impact your just compensation.
What is relocation assistance and who qualifies to receive it?
Although reimbursement for relocation expenses is related to the eminent domain process, it is handled separately. In 1970, Congress passed the Uniform Relocation Assistance and Real Property Acquisition Policies Act. Although this action provided clarification in some areas, the relocation reimbursement process for state projects still varies according to location, and cases are usually evaluated on an individual basis. If you have been displaced due to federal or federally funded projects, an experienced condemnation lawyer can insure that your benefits are maximized.
Can I rely upon the government’s relocation personnel to obtain all of my relocation benefits?
No, you need to make sure you are fully informed of your monetary and non-monetary rights under relocation laws. In some instances, federal relocation laws apply and in others situations your state relocation law will apply. An experienced condemnation lawyer will insure that your benefits are maximized and will know how to resolve differences without additional litigation.
I have plans to develop my property. Should I continue to secure government approvals to develop my land?
No. We do not recommend that you attempt to obtain building permits, variances, zone changes, subdivision approvals or curb cuts without consulting experienced eminent domain counsel. A failed attempt to obtain such approvals can be used against you in condemnation litigation and can be harmful to your case.
Should I appeal my real estate tax assessment?
Prior to considering an appeal of your real estate taxes, you should consider consulting an attorney experienced in eminent domain litigation. If you do appeal the tax assessment, your opinion of value in the tax appeal may be used against you in the condemnation proceeding and affect the amount of just compensation you receive.
Should I stop caring for and maintaining my property?
No. Even if you are facing condemnation, the value of your property is often determined at the time it is actually taken by the government. A lack of maintenance may decrease its value affecting the amount of just compensation you may be entitled to receive.
Can the power of eminent domain ever be challenged?
While state and federal government agencies have the power of eminent domain – to take private property for public use – that power is not unlimited. Eminent domain power is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution and by individual state constitutions and laws. If the government seeks to take your property, there are potential defenses an eminent domain attorney may employ to challenge the taking. Below are three of the most common defenses to condemnation:
• The government lacks the legal authority to condemn the property
• The government lacks a sufficient public purpose for the condemnation
• The government has not negotiated in good faith prior to taking the property
To find out more about potential defenses to the eminent domain power in your state visit the state by state eminent domain laws under Locate an OCA Lawyer.
Can eminent domain be used to take my property and give it to another private party?
The federal and many state constitutions say that property may only be condemned for “public use,” which over time has been expanded to include “public purposes” as well. For many years, “public use” meant that property could be taken for things like roads, schools, and public buildings. Later, courts allowed eminent domain to be used for private corporations developing public utilities, like electric companies and railroads. In the 1950’s, eminent domain became increasingly used for “slum clearance.” Once an area was declared to be a slum or “blighted,” property could be taken using eminent domain and urban renewal laws and then transferred to another private party. More recently, eminent domain has been increasingly used to transfer land to private parties like pipeline companies.
Whether and under what circumstances courts will allow this use of eminent domain is a matter of state law. Several states permit condemnations for economic development, but some do not. You should consult with an experienced eminent domain lawyer in your state to determine if the condemnation threatening your property is legal. You may also find a discussion of the different state laws on this issue under Locate an OCA Lawyer.
Why shouldn’t I negotiate on my own?
Everything you say or do may be used against you by the condemning authority at different stages of negotiations and litigation. By waiting to select an attorney after talks have been underway, you risk unknowingly compromising your rights and compensation. Keep in mind that you, as the property owner, are engaging with a condemning authority which has full knowledge of its rights while you have little knowledge of your rights under eminent domain law.
Why should I consult with an eminent domain lawyer?
Eminent domain proceedings are complex and can involve complicated issues such as the property’s highest and best use, the calculation of just compensation and the damages a property has suffered due to the taking. Eminent domain proceedings are a unique blend of law and appraisal theory and an effective legal counsel needs to be well-versed in both disciplines. Property condemnation can also be a confusing and stressful process. Having a qualified condemnation lawyer on your side to assist as you navigate the process is not only helpful, but possibly essential. The government will have experienced eminent domain counsel on its side. To protect your rights, shouldn’t you?
What should I look for in an eminent domain lawyer?
Eminent domain laws are complex, are constantly changing and are unique in each state. As a result, when the government or a private entity threatens to take your private property, you need a lawyer who is experienced in and dedicated to this area of the law. The lawyers in OCA’s nationwide network are committed to representing property owners in eminent domain and property rights litigation. OCA lawyers have successful track records representing private owners in condemnation and property rights proceedings. Their results highlight their skills and abilities.
What should I look for in an appraiser?
For the same reason you will want to be represented by an experienced eminent domain lawyer, you will want to retain an appraiser who is experienced and well versed in the valuation of property being taken by the power of eminent domain. There are many special rules, procedures, standards, and even laws for valuing property that is the subject of a condemnation action. Not all appraisers may be aware of or familiar with such rules and standards. Additionally, should you be unable to resolve the case through negotiation, requiring that the case be litigated in court, you will want an appraiser that has the experience to serve as an expert witness in the case. Because the appraiser plays such a critical role in the valuation of the property, consultation with an experienced eminent domain lawyer prior to retaining the appraiser is advised.
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OCA Files Amicus Brief in Virginia Oystermen Takings Case https://t.co/mWJcz2rifw