Eminent Domain / Condemnation

What is Eminent Domain?

Eminent Domain – also referred to as “condemnation” – is the power of local, state or federal government agencies to take private property for public use provided the owner is paid just compensation. Private corporations such as oil and gas companies, railroads or redevelopment authorities may also be granted eminent domain power to complete certain projects benefiting the public.

While the project for which eminent domain is used may be intended to benefit the public, it does not always benefit the private owner whose property lies in the footprint of the proposed project. The government and other entities armed with the power of eminent domain may take – or condemn – property even if the owner does not want to sell.

Each condemnation attorney affiliated with Owners’ Counsel of America is passionate about defending private landowners threatened by eminent domain. OCA lawyers fight hard for their landowner clients, employing all their legal abilities and experience to challenge the taking, when appropriate, or to obtain the full and fair payment of just compensation. Moreover, when a landowner employs an OCA lawyer, that landowner gains two strong advocates for one: the OCA lawyer being retained, and the resources and know how of OCA itself, a business association that has assembled the leading eminent domain and takings attorneys across the nation in the defense and protection of private property rights.  

Complexity of Eminent Domain Law

Eminent domain is a specialized area of law. Condemnation laws and procedures are complex and vary from state to state. While each state has precise policies, procedures and legal precedent that must be followed, the federal government and federal courts may follow a different set of procedures and rules. Owners’ Counsel of America attorneys are experienced in and understand the complexities and intricacies of eminent domain law. OCA lawyers can navigate the process, defending your rights and guiding you toward the best outcome.

Important factors – such as what constitutes a proper public use, how should just compensation be calculated, what damages has the remaining property suffered due to the condemnation and are business damages or loss of good will compensable – complicate this area of law, making the counsel of an experienced attorney a necessity. From challenging the right to take to determining what damages are compensable and what procedures should be followed – these are the issues OCA condemnation attorneys tackle every day.

The taking of private property by the government using the power of eminent domain can be both an emotional and confusing process. The government has skilled eminent domain lawyers working for them, shouldn’t you?

Stages of An Eminent Domain Case

An eminent domain case is a special statutory proceeding where every stage of the process requires strategical thinking and action to place the landowner in the best possible position for the best possible outcome. OCA lawyers understand this process well and know how best to navigate it. Depending upon the amount of money at issue, the complexities of the case, whether a matter is resolved through negotiations or only after a valuation trial has taken place, an eminent domain case can either be resolved quickly or over a span of several years. To understand more about the process and what to expect, review the typical Stages of An Eminent Domain Case

Pre-Condemnation Planning

It is important for a property owner to consult with an experienced condemnation attorney as soon as you are informed that the government plans to acquire your property. In eminent domain proceedings, the government is your adversary seeking to acquire your property which may potentially harm your business, development potential, investment or home. Owners’ Counsel attorneys have the requisite experience to analyze your situation and advise a course of action to protect your property rights.

When the government makes initial contact with a property owner, there may be several critical issues to be addressed. For example, what should the property owner’s response be when the government requests to perform environmental testing? How should the owner respond when his opinion of value is asked before any offer has been made? What should the owner reveal about his business or property replacement needs at the initial meeting with the government representative? What should the owner’s response be when the government wishes to send an appraiser or surveyor to the property to inspect the premises and obtain documents? The answer to each of these questions may impact the outcome of any negotiations or eminent domain litigation that follows.

Challenging Eminent Domain and Condemnation

When someone seeks to take something that is yours, especially something as valuable as your land, home or business, it is a natural reaction to want to stop it, fight it, or prevent it from happening. In most states, before any government or private authority can exercise the power to condemn, a court must approve the use of eminent domain. You will want an experienced eminent domain attorney on your side who understands how and when to challenge the taking of private property.

Perhaps, the condemning agency failed to make a good faith offer to purchase your property prior to filing the condemnation petition. Or, the condemning agency may have failed to follow the proper state or local eminent domain procedures. Another defense may be that the condemning agency simply has not been granted the power to condemn your property. Alternatively, your lawyer may argue that the condemnation of your property is not necessary for the public project.

Perhaps condemnation power is being used for a private project rather than a public purpose as required under the Constitution. This may be the situation when the ultimate owner of your property will be a private developer. When the proposed project is a redevelopment and a finding of “blight” is required, to defeat the taking of your property your lawyer may need to challenge the blight designation.

Relocation Rights

When private property is acquired for a public project, the property owner may be entitled to relocation benefits in addition to receiving compensation for the condemned property. Relocation benefits may include payment for moving expenses as well as assistance to find replacement property. Relocation rights are often governed under federal law and are determined independently of the property’s value. In some cases the expense of moving may be greater than the value of the property taken by eminent domain, this may be especially true with industrial sites. Fixtures and large machinery may require special equipment to move and reconnect, and it is important that the government reimburse for all such costs.

The successful relocation of a business can be a challenging task. Tenants are often entitled to relocation benefits and assistance to secure a replacement site and move the business. In some states business losses may be compensable under relocation laws. The relocation process may require complex negotiations which are unique to the type of property taken and business operated at the site. Most importantly, the relocation of a business must be timely and well-coordinated to minimize business interruption.

For a homeowner, relocation concerns may include the location of a replacement home within the same area as the condemned home, within a certain school district or within a certain distance from the owners’ place of employment or family. Under relocation laws, the government is obligated to assist in finding a suitable replacement site but may not be focused on all of the issues important to you.

Just Compensation

Under the U.S. Constitution and your state constitution, a property owner is entitled to “just compensation” when his property is taken using the power of eminent domain.  The payment of just compensation is intended to fully indemnify the property owner in money for what he or she has lost in property.  When only a portion of the property is taken, the property owner may be entitled to the value of the property taken as well as damages to the remaining property.

There are many legal principles and factors unique in condemnation which affect the value of the property and the calculation of just compensation. Whether the issue is the property’s highest and best use or the admissibility of various valuation techniques, Owners’ Counsel eminent domain attorneys know how to apply eminent domain law to the property owner’s advantage.

In valuing property, there are a number of considerations:

  • How do you maximize value?
  • Under what circumstances are business damages recoverable?
  • Under what circumstances can an owner be compensated for damages caused during construction of the public project?
  • In a partial taking, when is compensation for damages to the remaining property legally allowed?
  • In a partial taking, when can the government claim a setoff of damages by arguing the public project is going to increase the value of the remaining property?
  • What role does contamination play in eminent domain? Under what circumstances is it excluded from consideration?
  • Is the property designed for a special use, giving rise to unique valuation techniques?
  • How are fixtures treated in condemnation?
  • Who determines the compensation?
  • What is the time frame in receiving the compensation in hand?
  • How does the property owner secure maximum compensation and benefits for relocation?
  • When do tenants obtain compensation?

For more information about eminent domain visit our Landowner Resource Center and Library where you will find Definitions to key eminent domain and taking terms, helpful FAQ’s, Stages of a typical eminent domain case, and useful and informative Articles on an array of eminent domain and taking issues.