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What Happens When the Government Wants to Take Your Property

Written by Posted On Tuesday, 01 September 2020 16:13

Ever wonder what happens if the government plans to develop big projects like an airport or highway and your home or other property you own is located within the construction boundaries? Expect you'll be hearing from the government? But before you return that call or take that meeting, make sure you've consulted with a seasoned eminent domain attorney. 

While in most instances, property owners are not able to stop the government from taking their property, the U.S. Constitution does require that "just compensation” be paid for the taking. This means that property owners do not have to take what the government offers them. They can dispute the price and negotiate for a better deal. So unless you have a legal basis to fight the taking, you are better off investing your resources and energy into getting a fair price.

Eminent Domain in a Nutshell

Eminent domain entitles local, state, or federal governmental bodies to take property that  is  needed for legitimate public use or purpose. When the government needs private land for a project, affected property owners will be notified of the intent to acquire.  The government will generally send an agent to negotiate the taking.  Remember that this person works for the government and not you. That is why you need an experienced eminent domain lawyer to protect your interests.

As part of the acquisition process, an appraiser for the condemning entity will typically visit the property, assess its condition, size, location, zoning classification, and current use. In most jurisdictions the owner must be given a copy of the appraisal. It is recommended that you carefully review the appraisal for accuracy and also to make sure you understand it. Appraisals, both the government’s and the one that you, as a landowner may obtain, become the primary basis for determining the compensation that will be eventually paid.

Better Price Negotiation

Property owners have the absolute right to negotiate with the government’s agent for more than the amount being offered. How long negotiations will be conducted differs from state to state but generally all states require that the parties confer for a reasonable period of time. However, once an impasse has been reached, the situation may escalate to the filing of a formal condemnation action.

Defenses

Once the condemnation lawsuit is pending, an owner can either contest the acquisition or focus on maximizing the amount of just compensation to be paid.

Again, the law differs from state to state, but some common defenses to an exercise of the eminent domain power concern whether the property is being taken for a proper public use, whether there is a need and necessity for the taking, and whether the condemning authority has the legal right to take the property.  

Frequently Asked Questions

Do I need to hire my own appraiser?

If you disagree with the offer being made to you and the government refuses to accept your counteroffer or you are uncertain about how much compensation to ask for, you should seriously consider obtaining your own appraisal.

Depending on the state, the government may be required to reimburse you for the cost of your appraisal. An experienced eminent domain lawyer can advise you on the proper course of action and also possibly recommend qualified appraisers to you.

Remember that valuing property for an eminent domain taking is very different than valuing property for other purposes, such as obtaining a mortgage. Because special rules and standards apply, you need to employ an appraiser that had the experience and knowledge to do a good job for you.

How is Just Compensation Determined?

The payment of just compensation is intended to fully indemnify the property owner in money for what has been 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, experienced eminent domain attorneys know how to apply eminent domain law to the property owner’s advantage.

Once a condemnation action is filed, either a jury or some other independent body (like a commission) will determine the amount of just compensation to be paid after receiving evidence during a trial proceeding.

Can the Government take possession of my property before compensation is finally determined?

Once a condemnation lawsuit has been filed, the government may ask the court to grant it what is called "immediate possession" or a "quick take" of your property. This process allows the government to gain access to your property in order to start construction of the project pending a final determination of just compensation.

In most jurisdictions the government is required to make a certain amount of money available to you in exchange for taking early possession of your property. This is commonly accomplished by making a monetary deposit into the court registry, at which point you may petition the court to withdraw it.

The Bottom Line

Eminent domain cases are complicated, with many stages where an uninformed landowner can make mistakes. Some missteps can lead to missed opportunities to either defeat the taking or ensure that the full measure of just compensation is received. With so much at stake and so much to lose, make sure you are prepared when the government contacts you about wanting your property, by having an experienced eminent domain lawyer on your side.

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Lauren Alexander

Lauren Alexander is the Content Marketing Strategist for Owners' Counsel of America, a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the US. OCA’s members are leading condemnation lawyers that represent landowners against local and state governments, transportation departments, utilities, energy companies, redevelopment authorities, the Federal government, and any other agency that may be armed with the power of eminent domain.

https://www.ownerscounsel.com/

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