At Sever Storey Walker, we work exclusively for LANDOWNERS. The State of Indiana and Federal constitutions require that landowners receive just compensation for any land taken through condemnation and/or eminent domain. This is just not a statement of puffery. This is our core and fundamental belief. It is our mission, as landowner attorneys and lawyers, to represent Indiana landowners and hold the government or taking authority accountable under the Constitution for any land acquired through by eminent domain and through the condemnation process. We will never represent a state, municipality, utility or any other taking authority in an eminent domain taking. Our lawyers and law firm are built around serving you, the Indiana landowner.
For a lot of individuals visiting this website this may be your first exposure with hiring an attorney. You probably have some questions; so let’s get the big ones out of the way. Please remember that every case is different. The responses below are designed to answer general legal questions. If you want to discuss the particulars of your case please give one of our condemnation lawyers a call or send us an email for a free evaluation.
At Sever Storey Walker we have provided results and solutions for hundreds of Indiana landowners and businesses that have been faced with eminent domain and condemnation. We have a large body of practical experience in solving problems that may arise in the Indiana eminent domain or condemnation process. We have gone to the mat for landowners against the State of Indiana, local governments, pipelines, powerlines and developers. Our lawyers have represented farmers, business owners, and residential landowners on projects ranging from commercial takings, where millions of dollars were at issue, to small setback cases. We have even taught other attorneys how to help clients faced with eminent domain or condemnation. We also have the ability to use our experience to identify issues that you may never have contemplated. When we give recommendations and advice you can rest assured it comes tied to real world applications and a large amount of experience.
The State of Indiana or taking authority has been planning their condemnation for many years. Their attorneys, appraisers and real estate professionals have been examining your acquisition in detail. It is imperative that you level the playing field and engage your professional team (including appraisers and attorneys) as soon as possible. The quicker your team can get involved the more effectively you will be able to present your case for compensation. Procrastination is not your friend in condemnation.
We provide legal representation by contingency or hourly fee. For many folks, hiring an attorney by the hour can be financially difficult. For those folks that choose not to pay by the hour, you may hire our firm under a contingency fee arrangement. Frankly, this is the method most individuals choose when hiring our firm. Under this arrangement we will take 33% of any compensation secured beyond the amount that the State of Indiana or taking agency first offered to you. This means that our attorneys will only be paid if we increase the value directly to the client.
Eminent domain is the process by which states and localities have the right to condemn and force the sale of private property usually in order to serve a public purpose. In some situations, states or localities have given this power to administrative agencies, local utilities, or local boards (e.g. library boards). Condemnation is the act of a government exercising its power of eminent domain, not to be confused with the legal process where a building is designated as no longer fit for habitation. Traditionally, private property is often taken for public uses like building freeways, schools, bridges, and more recently certified technology parks. Only a judge can decide whether or not a taking is for a public purpose should there be a dispute between the property owner and the state.
Condemnation is the process by which the taking authority will acquire your land. This process is controlled by statute. A discussion of the condemnation process can be found following this section. Think of it this way, eminent domain represents the power to take, condemnation is the process by which they take it.
Property can in certain situations be taken for private projects as well. Over the past few decades, the courts have interpreted what projects are for “public use” very broadly. The courts have deferred the decision of whether or not something is for a “public purpose” to the individual state legislatures. For example, some communities now use the power of eminent domain to seize “blighted” neighborhoods for redevelopment into more upscale condominiums and apartments. In situations such as these, the state serves as the “middleman,” taking the private property from one person to sell or give to another in order to spur economic growth. Projects such as these are often referred to as “economic development zones.”
While states and localities generally have the right of eminent domain, or can get this right, the U.S. Constitution entitles home and landowners to just compensation for their property by way of the 5th and 14th Amendments. After the government decides to take property, it will enlist an appraiser to determine the fair market value of the land, which is the amount of money that the government is offering for the property. The appraiser will inspect the property and will review all other elements that might affect property value. Home or land owners can either accept or reject the government’s offering price. The state will have attorneys and a legal team waiting on deck if you choose to reject that offer, so it is best to work with a lawyer in deciding whether or not to accept the government’s appraisal price and to protect your legal rights.
The Indiana General Assembly modified Indiana’s existing eminent domain law in 2006. The most significant change to the existing law was the placement of new restrictions on localities from using the eminent domain power to create economic development zones or to spur private businesses. The legislature carefully delineated the possible scenarios where eminent domain procedures are for a “public use.” These public uses include the building of schools, bridges, highways, airports, and certified technology parks. Further, the legislature limited the types of property that may be acquired by eminent domain, namely those that are public nuisances, unfit for habitation, abandoned or environmentally contaminated.
Projects that no longer qualify under the law as a public use are now termed as “private to public to private” projects (or “ppp”). Some properties in a “ppp” then may not be acquired through an eminent domain action and must be purchased by whatever cost the seller is demanding as compensation.
Indiana state projects, like projects in virtually every other state, begin in the state legislature. The Indiana General Assembly must vote on and approve the bill that contains the project’s funding and details. Once the bill containing the project passes both houses and is approved by the Governor, it may then go into effect. Municipal (local) projects proceed in a similar fashion; however, rather than passing through the state legislature, they are approved by a locally elected city council. Once either type of project is approved, they still require funding in order to be implemented—which often is the cause of delay in many projects. Funding is allocated based on a budget, which is also voted on and approved by the respective local or state governing body.
Once a project has been approved, designed and funded, the governing body needs to acquire any land necessary for completion. A large majority of land acquisition is done through private negotiation between the condemning authority and any affected landowners. This negotiation usually begins when the condemning authority issues its uniform offer package to each landowner.
A uniform offer package contains the following documents:
This package constitutes the condemning authority’s official “offer” of just compensation, and it must represent a “good faith offer” of just compensation on the authority’s behalf. If an agreement cannot be reached after a certain amount of time (INDOT allows 30 days), the condemning authority will file a condemnation suit for appropriation of the landowner’s property.
The Complaint marks the inception of the condemnation process. The condemning authority, usually by way of its enlisted lawyers, must serve the Complaint on the landowner via mail, sheriff, or some other proper process method.
The Complaint details the following:
A Notice and Summons is attached to the Complaint. This serves to notify any interested party of a preliminary hearing for objections—usually set for approximately a month after the Complaint is filed. If an interested party seeks to object to the right or ability of the State to acquire the land, the party must raise any objections at this hearing. A failure to raise objections at this hearing will constitute a waiver, and objections may not later be raised.
If the landowner objects to the Complaint, the Court must first resolve whether the condemning authority has the authority to acquire the land before any valuation may be determined. If the landowner is successful in his or her objection to the taking, barring an appeal, the case is over, and the land may not be acquired.
In eminent domain cases in the State of Indiana, the landowner does not file an answer. The attorney representing the landowner is required only to file a notice of appearance to generally inform the Court that he or she is representing the landowner. If the attorney plans on making an objection to the Complaint, be aware that statute limits the grounds on which objections can be based:
Objections to proceedings; appeals
If the landowner is unsuccessful in his or her objections or chooses not to object to the condemning authority’s ability to acquire the property, the authority may then file a Motion for Appropriation of Real Estate. In this Motion, the authority includes a request that three (3) disinterested parties be appointed by the Court to appraise the value of the subject property. The Court appoints these appraisers and gives them a deadline—generally one to two months after the Motion for Appropriation is filed—to come up with a single report detailing their determination of the just compensation owed to the landowner.
Once the court-appointed appraisers’ report is filed, either the condemning authority or an interested party may except to the amount in the report within forty-five (45) days after the Court mails copies of the report to the parties. If no parties except to the report within that time frame, the just compensation determined in the report is deemed the final amount due the landowners and the case is considered adjudicated. If a party excepts to this amount, total just compensation owed to any interested parties is not yet determined and the condemnation suit proceeds.
The 45-day deadline to except to the appraisers’ report is by far the most important deadline in an eminent domain case. Failure to file timely exceptions on behalf of your client could effectively end the case. There is no statutory allowance for a continuation of this deadline:
Notice of filing of appraisers’ reports; exceptions to reports
At this stage, regardless of whether either party has filed or plans to file exceptions to the appraisers’ report, the condemning authority may enter and take control of the land to be appropriated if it deposits with the Clerk of Court the amount determined in the report. All interested defendants may then seek to withdraw part or all of this deposit, but the amount withdrawn will be subtracted from any amount of just compensation determined in the future. If any interested party wishes to keep part or all of the deposit with the Clerk until just compensation is finally adjudged or negotiated, the interested party will receive 8% annual interest on the difference between the original offer made to the landowner and the just compensation that is eventually determined.
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Before going alone against the State let us give you our opinion. It is our pledge that we will provide a free case review for any individual or business facing eminent domain or condemnation. Contact us now at 888-318-3761