What Are The Costs Why Must I Pay Them
In North Carolina, it is unethical for an attorney to accept employment in a civil case unless the client agrees to be responsible for the costs of a lawsuit.
Ordinarily, in land condemnation cases, the primary expense is for expert witness fees. In order to present a case properly, a landowner has to employ one or more expert real estate appraisers to testify as to the value of the property, based upon sales of comparable land. Certified real estate appraisers normally charge by the hour for the time spent in conducting the appraisal, as well as for the time spent testifying in court.
Our policy is to obtain an estimate from the appraiser in advance as to the anticipated expense. Depending upon the amount of land taken and the difficulty in obtaining information on comparable sales, each appraisal may cost anywhere from $250.00 to several thousand dollars.
Other costs may include subpoenas and depositions, which are infrequently done in these cases. It is our policy to request client approval of any expenses in excess of $50.00. Normally, costs other than expert witness fees will not be more than a few hundred dollars at most.
How Is My Property’s Fair Market Value Established For Eminent Domain Purposes
Before it can exercise its taking power over private land in the United States, the government is legally obligated to pay just compensation to the owner. Courts interpret the Constitutions mandate of just compensation as being the propertys fair market value. In other words, if you tried to sell a similar piece of property in a similar condition in a similar location, how much would you likely get for it?
Fair market value is ordinarily determined by a professional real estate appraiser: someone who is licensed by the state and has experience in real estate. The government will hire an appraiser to evaluate your home or propertys fair market value.
The appraiser will look at factors such as your property’s location , its condition , its natural or manmade resources , what improvements have been made to it , and the general market conditions in the area .
All of the above elements would go into the appraisers estimate of the propertys fair market value. This formula is not surprising Any buyer who would make an offer on the property would consider the same elements when considering the appropriate price to pay.
It is true that different appraisers might arrive at different numbers, for example if one appraiser places more or less value on one of those factors. However, all appraisers will attempt to find objective data points such as the above on which to base their ultimate number.
The Governments Offer Isnt Always Just Compensation
It is very important to keep in mind that just because you receive a Notice of Condemnation apparently supported by a written appraisal, that does not necessarily mean that you are being offered true just compensation. In fact, condemning entities typically do what they can to minimize the amount of just compensation paid. You have important rights under Texas law to ensure that you receive fair compensation for your property. An experienced Texas eminent domain lawyer can protect your rights and get you what you deserve for your property.
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Just Because The Government Has Rights Doesnt Mean You Do Not
It may feel like the government has a trump card with eminent domain.
However, the power of eminent domain is not absolute.
As a property owner, you also have a number of important legal rights.
With the threat of a condemnation case looming, youll want to speak with an experienced eminent domain lawyer as soon as possible.
It is fairly common to challenge the compensation amount.
You also often have the following rights, depending on the state:
Negotiation: The public authority is usually required to engage in good faith negotiations around compensation before going to court to seize your property.
Dispute: Landowners are often entitled to their day in court if they are unhappy with the compensation amount.
Remember, just because the government has the right of eminent domain, it doesnt mean that they automatically win.
The right eminent domain lawyer can help you identify the grounds on which you can challenge the governments claim.
Even if you end up having to give up your property, you can receive just compensation and guidance navigating this process.
Expense reimbursements: Landowners can often recover some relocation costs, attorneys fees, appraisal, or survey fees, and other expenses that result from the eminent domain process.
Dont let this process come out of your own pocket.
State laws can sometimes protect you.
Am I Entitled To Recover Costs Spent In An Eminent Domain Action
Yes. The condemning authority is required to pay your attorney’s fees in an eminent domain action. The amount of attorney’s fees paid are based on a formula in the Florida Statutes. Attorney’s fees are paid separately from any money you recover and do not reduce your recovery for the property taken.
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How The Government Takes Private Property
As the government makes its plans for expansion and improvement of publicly maintained roads and utilities, it determines which private parcels will be affected. Once it makes that determination, the government will work with its own appraisers to determine the appropriate price for the necessary property interests. When the government has established its estimation of the property value, it may offer the landowner a particular price for the property. If the property owner agrees, the government buys the land. If the property owner disputes the government’s valuation and they cannot agree on a price, the matter will go to condemnation proceedings.
During condemnation proceedings, the property owner will get to offer his or her own valuation for the property. Typically, the property owner will work with an attorney and an appraiser. The attorney will protect the property owner’s legal rights respecting the involved property, and the appraiser will work to establish the property’s fair market value. The property owner may also oppose a forced sale by contesting the government’s proposed use of the property.
What Will Happen At The Jury Trial Of The Eminent Domain Action
An eminent domain jury trial usually lasts at least three days and sometimes up to two weeks. A jury of twelve persons is selected. The jury decides the facts of the case, including the monetary value. Once the jury renders its verdict of compensation, the judge enters a final judgment for the awarded sum.
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What Is Just And Adequate Compensation In A Texas Eminent Domain Case
In many instances, a property owner in Texas cant prevent the government or other entity with eminent domain authority from condemning and taking their land. What they can do is take steps to ensure they receive full value for the property that is taken.
Both the U.S. Constitution and the Texas state Constitution guarantee that a property owner is entitled to certain rights . This includes a just and adequate compensation for their land when it is taken by the government or other entity in an eminent domain action.
How Do We Calculate The Compensation Due To A Tenant Or Leaseholder
Generally, the total compensation for the landowner, the tenant and any other property interest is determined by valuing the property as if it were owned by one person without any other interests. Division of Administration, State of Florida, Dept. of Transportation v. Allen, 447 So. 2d 1383 . This so-called undivided fee rule initially ignore all of the various property rights to the property to establish one award of fair market value.
Once the undivided award is determined, it is then allocated into proportionate shares, depended on the value of each property interest in the property. This process is called apportionment. An apportionment hearing is typically held to divide the compensation between the owner and tenant. See Fla. Stat. § 73.101. At this hearing, tenants are entitled to demonstrate the value of his or her share of the proceeds based upon the value of the leasehold interest taken. Afterward, the court should divide the total compensation fairly to compensate the tenant for the established value of his or her property right. Dama v. Record Bar, Inc., 512 So. 2d 206 .
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The Government Must Make A Bona Fide Offer To Buy Land Using Eminent Domain In Texas
Before an entity with eminent domain power in the state of Texas can take your land, they must first make a bona fide offer to buy it. This offer is based on an appraisal by a certified appraiser The offer will state the just and/or adequate compensation you are owed for your property and how they arrived at this amount. The State of Texas Landowners Bill of Rights states that this amount should include the value of the property being acquired as well as the damages, if any, to any of the remaining property.
The entitys final offer must be equal or greater than the amount of the written appraisal. The property owner then has 14 days to respond to accept or reject this final offer.
The Eminent Domain Process Differs From State To State
If threatened with condemnation, youll have to investigate what the process looks like at a local level.
However, there are some basic steps that are somewhat similar across the country.
These include:
The government, agency, or company will be known as the condemnor
The condemnor, with the power of eminent domain, identifies a public project or use.
The condemnor will notify any and all potentially affected property owners that their property is needed for legitimate public use
The condemnor may make an offer to buy the property first
If the negotiations are not successful, then the condemnor will file to acquire the property using eminent domain in exchange for just compensation
The state-to-state guidelines will determine how just compensation is calculated
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When Can The Government Seize Your Property
Federal law allows law enforcement agencies and prosecutors to seize property, including money, from people convicted of certain federal crimes, such as drug trafficking, money laundering, and organized crime. The seizure is known as forfeiture, and it’s done without compensation to the owner.
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Taxes And Eminent Domain: What You Should Know
With the 2016 tax season wrapping up and new public works projects popping up around every corner, now is as good a time as any to discuss how eminent domain affects your taxes. Below are the most common questions property owners have about taxes when their property is being assessed for a government taking.
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Am I Entitled To Recover Attorney’s Fees Spent In An Eminent Domain Action
Yes. The condemning authority is required to pay your attorney’s fees in an eminent domain action. The amount of attorney’s fees paid are based on a formula in the Florida Statutes. Attorney’s fees are paid separately from any money you recover and do not reduce your recovery for the property taken.
California Jury Awards $32 Million After $18 Million Compensation Offer
One of the most recent cases involving a lowball condemnor offer was reported in November 2015. The California Department of Transportation seized 34 acres from 94-year-old ranch owner, Lorraine Silveira, as part of a highway expansion project in the northern San Francisco Bay Area. Caltrans offered Ms. Silveira roughly $1.8 million as just compensation for the taking of her property by eminent domain. It had valued the condemned property at just $575,000.
Ms. Silveiras attorneys sought $6 million in compensation, and when Caltrans refused to pay, the Marin Independent Journal reports that extensive litigation ensued. The owners attorneys attacked the state appraisers absurdly low valuation, and presented evidence during the 20-day trial that the taking would damage the value of the remaining property and limit its future use as a winery. The jury returned a verdict awarding Ms. Silveira $3.2 million in compensation $1.7 million for the property taken plus $1.5 million for damages to the remainder resulting from the highway expansion project.
The property owner is currently seeking to recover her attorneys fees from Caltrans.
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What Is The Process For Taking My Land
After the D.O.T. selects and approves a route and the highway design is complete, right-of-way agents for the State contact all affected property owners. These right-of-way agents will provide information to landowners about how the project will be constructed, and will also obtain information about your property.
If you will be required to move, a relocation agent will also contact you to discuss assistance and payment allowances.
The D.O.T. will make you a written offer for your land which will include the amount offered as just compensation a description of the property to be taken and an identification of all buildings and other improvements which will be taken.
How Do Options To Renew The Lease Affect Tenant Compensation
When a lease allows the option to extend the term beyond its original expiration date, courts must measure the value of the lease through its longest limit. An unexercised option to renew may afford compensation to the tenant, so long as there is a demonstration that the lease would have been renewed in the absence of the taking. Dama v. Record Bar, Inc., 512 So. 2d 206 . However, a mere expectation that a lease will be renewed is not sufficient to allow for compensation.
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What If You Dont Think The Offer Is Just And Adequate Compensation
At the law offices of Dawson & Sodd, weve received many complaints from Texas landowners. They feel the amount theyve been offered for their land in a condemnation proceeding is much less than what they consider to be just compensation. In these circumstances, we advise them to hire an experienced Texas eminent domain attorney. An attorney can bring in an independent appraiser and other expert witnesses. They will determine the true just and adequate value of your property. They will use the new appraisal to renegotiate the taking entitys bona fide offer. It will also be evidence in court if a lawsuit is necessary.
Some factors to consider when determining the fair market value of a property include:
- Current market value of the land
- Loss of income
- The size of the property
- Tax declarations
- Current use and potential use
- Interest payments
- Any land improvements seized
- The use to which the condemning authority will put the part taken and how that will affect the remaining property
- Specific damages caused by the taking
- Unique characteristics