“Let the people have property, and they will have power.” – Noah Webster,
“An Examination into the Leading Principles of the Federal Constitution”
October 17, 1787
The taking of a Landowner’s property by a governmental entity or public utility for a public purpose is known as eminent domain and condemnation is the legal process used for such a taking. It is important to know that while the power of eminent domain is an inherent governmental power, it is also a limited power. The Fifth Amendment to the Constitution both acknowledges the power and limits its exercise by stating, “No person shall be deprived of life, liberty, or property with due process of law,” and “Nor shall private property be taken for public use, without just compensation.” Most states have a similar amendment within their own constitution that not only restates the federal amendment, but amplifies the limitations by summarizing the condemnation procedure to be followed.
Condemnation is unlike other proceedings and the ordinary rules of civil litigation do not apply. Instead, condemnation is a special proceeding guided by statute and although some condemnation cases can be challenged on the basis of legitimate public use, most condemnation proceedings focus on providing the Landowner with just compensation for the property taken. At LandownerFirm we are committed to working closely with and guiding our clients through the entire condemnation proceeding in order to reduce damages to the property and maximize the Landowner’s monetary recovery.
Condemnation proceedings typically start way before the formal legal process actually begins. While LandownerFirm is well versed in the formal legal process, it is the founder’s approach and philosophy to the pre-litigation process that the firm has become so well known for in these types of proceedings. Trae Gray believes there are many landmines involved in the pre-litigation process and that companies use the “threat” of condemnation to get more than what they have a legal right to take. How does this happen? Companies typically hire third party companies that have landmen or right-of-way agents to negotiate with Landowners before the filing of a condemnation case. This is when the biggest injustice typically happens because both unsuspecting and very well educated Landowners and non-landowner attorneys agree to terms in contracts that are both overlybroad and unduly burdensome. The Landowner gives up more rights than what the condemning company had a right to take in the first place. The results of these mistakes are everlasting. It is crucial that Landowners get a landowner attorney involved BEFORE they agree to or sign anything in order to prevent this from happening.
In most states, formal condemnation proceedings are initiated by the condemnor who files a petition asking the court to appoint three disinterested freeholders, otherwise known as commissioners, who are charged with inspecting the property, determining just compensation for the property taken, and rendering an award. Just compensation is typically defined as the fair market value of the property or otherwise, the highest price that a willing seller could get from a willing buyer. In addition, just compensation not only includes the value of the property taken, but also any injury to any part of the property not taken. Thus, the commissioners are charged with determining the fair market value of the property to be taken, plus the injury to the property as a whole that results from the taking. Once the petition is filed, a court will instruct the commissioners to report their valuation of the property within 30 to 60 days from the filing of the petition.
Typically, the filing of the report of commissioners is important for a number of reasons. First, the filing of the report sets up unalterable deadlines. For instance, failure to file objections to the commissioners’ report within thirty days waives the Landowner’s right to dispute the purpose of the taking and failure to demand jury trial within sixty days waives the Landowner’s right to dispute the valuation set by the commissioners. Second, the Landowner is entitled to immediate payment of the award even if he intends to contest the amount at a jury trial. Finally, in some states if a subsequent jury verdict exceeds the commissioner award by 10%, the Landowner is entitled to be reimbursed by the company for their attorney fees. A thorough understanding of the strategy involved with respect to this process is crucial to protecting the Landowner. Being able to think ahead is vital to making sure the Landowner does not get in a bind.
Any Landowner currently facing an eminent domain proceeding will likely be pitted against a powerful governmental entity or public utility with almost limitless resources for lawyers and experts. In addition, it is likely that the governmental entity or public utility will use the threat of an eminent domain to persuade the Landowner to sign an overly broad and unduly burdensome contract instead of facing an eminent domain proceeding. Unlike many law firms, our firm focuses on the terms of the contract in order to ensure both the best possible outcome for the client and that the governmental entity or public utility does not get more rights than it is lawfully entitled to receive. At LandownerFirm, clients rely on our expertise and experience in this practice area to make sure they are getting the best terms and most value for their land when condemning companies come knocking on their door.
U.S. Constitution, Fifth Amendment