© Copyright 2023 SEVER STOREY. All Rights Reserved.
Eminent domain and condemnation are two terms often thrown around within the same topic, so, understandably, some people get confused. Though similar, these two terms are not entirely interchangeable.
Understanding eminent domain and condemnation can help you better understand your rights as a landowner. Here’s what you need to know.
-Eminent domain is the power of certain entities (“condemnors”) to seize private property.
-The property owners must be provided “just compensation” for their property.
-The offer can be, and often is, inadequate.
-Public use can mean schools, highways, airports, railways, hospitals, powerlines, pipelines, and more.
-Condemnation is when the government, or private entity, legally acquires your property to put to a “public use.”
-This is different from abandoned or rundown properties being “condemned” to enforce safety and housing codes for residents or tenants.
-Owners do not have to accept an offer of compensation from a condemnor and can challenge the compensation, and the acquisition itself, in court.
-The condemnation process can be simple or complicated, short-lived or lengthy; this is why hiring an experienced attorney is important.
Eminent domain refers to an entity’s power to take property away from a private landowner and put it toward public use. To exercise this power, the entity must follow certain procedural guidelines.
For example, the government can only take away private land under eminent domain after first providing a monetary offer and notice of the acquisition.
While the power of eminent domain is often assumed to be reserved for public entities and governmental bodies, private entities (like pipelines and transmission lines) can sometimes exercise this authority as well.
Whether or not these private entities may exercise eminent domain is entirely dependent on the state and federal law applicable to the situation.
Here’s what to expect when the eminent domain process begins.
-A condemnor (DOT, pipeline, county, etc.) announces a new project that will require your land.
-This entity will send appraisers and/or valuation experts to estimate the value of your property. This is a subjective process that is often inaccurate or incorrect.
-The condemnor makes an offer to the property owner or landowner based on the appraisal.
-This pre-condemnation offer serves as both an opportunity for the government to acquire your property and is often a necessary predicate step before filing a condemnation action for your property.
-Once you receive an offer, you should hire a competent and experienced attorney to evaluate the offer.
-Your attorney takes it from here and can resolve it pre-condemnation or during condemnation.
Some cases can be resolved in 3-6 months, while others require 12-18 months for a resolution. Your attorney handles every aspect, including the preparation, deliberation, and negotiation necessary to ensure the best possible outcome.
Condemnation is the process by which the aforementioned entities exercise their eminent domain authority. If your state department of transportation (DOT) wants to build a road on your property and the correct procedure is followed, the DOT will acquire your property via eminent domain powers and file a condemnation complaint or petition to do so.
The condemnation procedure depends on where the acquisition is taking place, which entity is doing the acquisition, and sometimes, the purpose of the acquisition.
For example, a private natural gas pipeline condemning property in Texas and Oklahoma may follow a different condemnation process and procedure than a municipality in Georgia condemning land for a road widening project.
Your individual condemnation case will require a full analysis of all the relevant statutes and regulations to determine your strategy.
Federal, state, and local municipalities, through eminent domain, can condemn your property. In some areas, they delegate that power to administrative agencies. Sometimes local boards and public utilities exercise that authority.
Thanks to a Supreme Court decision, land can also be condemned by a private enterprise acting in the public’s best economic interest.
Local or federal officials may condemn your property if it:
-Needs to make way for a public project, like a highway.
-Must serve as a location for powerline and pipeline projects.
-Needs the land for redevelopment purposes.
It’s important to note that when a condemnor acquires an easement, this grants them the right to install and maintain pipelines or power lines on your property but you will retain ultimate ownership over the land.
While the term “eminent domain” refers to the right to take the land, “condemnation” is the act of actually carrying out that right—when the government or private entity seizes the land from the landowner.
As a landowner, you have the right to challenge a condemnation acquisition, but it is generally difficult to prevail–unless the condemnor failed to follow condemnation law and procedure in its acquisition. Challenging the compensation for condemnation is generally a much easier fight for the landowner.
Some landowners fight because they can prove their land isn’t being condemned for a “public purpose.” Unfortunately, state and federal courts allow legislatures broad authority when answering that question.
Examples of public use include schools, highways, airports, and private enterprises such as economic development zones and specialized technology parks.
It may seem as if landowners have no control in the case of eminent domain, but each state grants certain rights to them in these situations. Every landowner in a state-level eminent domain action has the right to a jury trial over the compensation they are owed due to the acquisition.
This right is codified in the 5th Amendment of the U.S. Constitution. It includes the ability to disagree with whatever the condemnor offers you for your property. Many landowners are under the impression that whatever the condemner offers them is “fair” or “the best they can get.”
This is not always the case, and, in our experience, it is very often not the case.
Landowners are entitled to disagree with the state’s position on compensation, and they are further entitled to have a jury hear their own position.
Now that you understand the nuances of eminent domain vs condemnation, you’re better equipped to handle the eminent domain process. If you’re a landowner facing condemnation, Sever Storey Walker can help you get fair compensation.
We have years of experience representing landowners of all types, all over the country. Our expertise and incredible track record in cases ranging from retail space to farmland speak for themselves.
Contact us today for help with your eminent domain case.
What are the unique issues that face commercial property owners in condemnation that can make all the difference?LEARN MORE
Landowners forget this one thing when dealing with utility companies that want an easement across their land.LEARN MORE
What you need to know to be treated fairly by the condemning authority.LEARN MORE