Frequently Asked Questions About Eminent Domain
I just received notice that the government wants to take my property. Should I contact a lawyer?
Yes. A lawyer can help you identify the issues you are facing, explore your legal rights and remedies, and discuss options. Most lawyers will not charge you for a phone call or meeting to discuss these matters.
If I don't accept the government's offer of compensation, will the government file a lawsuit against me?
That depends. There are typically opportunities to negotiate before suit is filed. The appropriating authority must provide you with a “good faith” offer of compensation at least 30 days prior to commencing a lawsuit. In many cases, the appropriating authority will approach the property owner well before this in an effort to purchase the informally. You will generally have time to consult a lawyer, engage your own appraiser, and attempt to negotiate a fair purchase price. If this effort fails, then the appropriating authority will file suit, after providing proper notice required by law.
The government wants part of my property, but I don't want to keep my property if I can't keep all of it. Can I force the government to take all of my property?
No. But you do have certain remedies. The part of your property that the appropriating authority does not want to take is called the “remainder”–that which remains after the government takes what it wants or needs. If the remainder is worth less than it was before the appropriation, then you are entitled to be compensated for the reduced value. If the remainder actually had no value standing alone, then the appropriating authority would have pay you the full value for the remainder, essentially compensating you for the entire property. But such a circumstance would be rare.
Who decides the value of my property?
If you and the appropriating authority cannot agree on a value of your property with the use of appraisers, then the value will be decided by a jury in a civil trial.
I'm underwater on my mortgage, will that hurt my case?
This will neither help nor hurt your case. Legally, it will make no difference to the outcome. You are entitled to just compensation, which is the fair market value of your property. Ultimately, that is what you will receive. The fact that you owe more on your mortgage that your property is worth does not require the government to pay you more than the fair market value. In the end, you could still owe money to the mortgage company.
I recently made improvements to my home (new carpet and new paint). Will I be reimbursed for these expenses?
Yes. Those “expenses” are legally known as “capital improvements.” Theoretically, they increased the fair market value of your home. Because the fair market value of your home increased, you will receive more compensation, and thus you will be compensated for the cost of your improvements.
If the government is going to take my property, should I continue to cut the grass and maintain my home?
There is no absolute rule here. The legal answer is that the property will be valued on the date of the “taking.” Typically, the court will decide the date of the taking, based on numerous factors. On the other hand, the parties can agree upon–stipulate–a date for the valuation of the property. If the parties agree on a date for valuation, the property owner would have no legal obligation to “maintain” the property thereafter. If circumstances surrounding the condemnation forced the property owner to vacate the premises prior to the transfer of title, the court may very well set the date the premises were vacated as the date of taking. Absent any unusual circumstances, and if the neighborhood does not deteriorate as a result of the impending condemnation, then the property owner–in the case of a personal residence–should probably continue with ordinary maintenance of the home.
If the government plans to tear down my home, can I remove fixtures such as cabinets, lights and doors before I leave?
The appropriating authority is obligated to pay you the fair market value of your property. Fixtures contribute to the fair market value of your property. Since you own the property, you can pretty much do what you want with it until title is transferred to the appropriating authority. However, if you remove features of the property (fixtures or otherwise) that give it value, then the fair market value (the compensation to which you are entitled) will be reduced by the value of the things you remove. Essentially, you “can’t have your cake and eat it, too.”
If the government takes my property, will the government reimburse me for moving expenses when I find a new home?
Yes. If the appropriate of real property requires the owner to move to a new residence, the appropriating authority shall pay the property owner reasonable expenses for moving the owner and the owner’s family and personal property.
If my case isn't settled, what happens at trial?
If the only issue is just compensation (and that is the only issue in the vast majority of cases), then the answer is pretty straightforward. You will have a civil trial in the county in which the property is located. A judge presides, but a jury decides the amount of compensation. Each side offers testimony from an appraiser, and perhaps other witnesses, such as engineers or land use experts. As the property owner, you are entitled to offer your own opinion about the value of the property. At the conclusion of the testimony, lawyers for each side summarize the evidence and present arguments for value of the property. The jury then deliberates and reaches a verdict as to the fair market value of your property. The verdict need not be unanimous, but must be agreed to be at least three quarters of the jury.
Who pays my attorney fees?
Each party to an appropriation case pays its’ own legal fees. There is one exception. If you challenge the necessity of the taking or whether the taking is for a “public use,” and the court determines the matter in your favor, then you are entitled to your reasonable attorney’s fees, expenses and costs.