Challenging Eminent Domain

When a citizen receives a notification informing them that the government is planning to take their property with an eminent domain action, it is common for people to assume that they have no recourse. The reality is that challenging eminent domain is possible, particularly with the help of real estate and legal professionals.

While the U.S. Constitution enables the government to acquire private land for public use, property taking is subject to numerous restrictions. One of the most important of these is the duty to inform the property owner of the eminent domain action within a reasonable time frame. What actually constitutes a “reasonable” time frame is rather vague, but most courts find that the property owner must at least be given adequate time to consult with legal and real estate professionals who can help them assess the offer. Accordingly, some property owners may receive notice more than a year in advance of commencement of the action while just a few months’ notice may be considered adequate in other cases.

Receiving such a notice is often a source of consternation for the home or business owner. Whether the entire parcel or just a portion of their land is subject to being taken, they may be unwilling to simply go along with the proposed offer. They can immediately take steps toward challenging the proposal.

A property taking can be challenged on a number of bases, which include the following:

-Just compensation has not been offered
-Government does not have appropriate authority
-Property is not needed for the project
-Proposed project is not for the public good
-Due process of law has not been observed

An attorney can help property owners to decide upon which basis or bases to challenge the taking of their land. By far the most commonly asserted claim against an eminent domain action is that the government’s offer does not represent “just compensation.”

Compensation may not be considered “just” when it does not take into account the amount of damage that will be done to the remaining private property when the seized property is improved as a part of the public project. Similarly, the government’s appraisers are supposed to weigh the value of the land if it were put to its “highest and best use.” When this factor is left out of the valuation, then the private property owner can obtain another real estate appraisal to propose a counteroffer.

The other bases for challenging eminent domain are less frequently used, and they can be more difficult to prove, which is why the help of legal and real estate professionals is so indispensable in these matters. For instance, these experts can determine whether or not a particular government agency actually has a right to take property for the proposed project. Alternatively, it may be possible to argue that the property in question is not truly necessary to the project. This may mean that the government has no right to make a claim to eminent domain.

When a private property owner receives notice of an eminent domain action, it is crucial that they immediately review it. Typically, this “notice of intent” informs the recipient of the government’s plans and proposes a dollar amount for settlement. There may be strict deadlines by which the property owner must notify the government of the rejection of their offer and make a proposal of a counteroffer. It is not unusual for several rounds of negotiation to occur, and mediation also may be employed.

Hearings and condemnation proceedings usually only occur when negotiations and mediation fail. The precise procedure for these proceedings varies upon the jurisdiction, but it is not unusual for them to begin with administrative hearings. If these fail, then a lawsuit may be commenced.

In both the administrative and court settings, parties to the dispute are entitled to bring witnesses and evidence that support their case. This can include property appraisals and comparison to similar properties in the area that were recently sold. If the case goes to court, it can take years to reach a settlement, particularly when appeals are involved. It is vital to understand that such a court case may not stop the project from moving forward. Plaintiffs may still be fighting for just compensation long after their property has been condemned and repurposed for public use.

When the property taking is found to be constitutional and all required procedures have been followed, the only remedy that the property owner can reasonably expect is financial compensation. However, if the administrative or court proceedings conclude that the action was not constitutional or was otherwise flawed, then the owner may lose less of their property in addition to receiving financial compensation.

In general, compensation is calculated from the date of the taking. Unpaid amounts are subject to accruing interest, which also must be paid to the property owner. While challenging eminent domain is rarely an easy process, it is almost always worthwhile to have a notice of intent reviewed by legal and real estate professionals to determine whether or not the government is operating within the letter of the law.