Eminent Domain / Condemnation - Additional Information

When you become forced into an Eminent Domain issue, you need to understand several concepts and terms.

"Eminent Domain" is simply the power of the government to take or damage private property for a public purpose upon payment of just compensation.

"Condemnation" is the legal process by which a government exercises its power of eminent domain. The entity exercising this right and who is taking your property is called a "condemnor".

"Just Compensation" is the amount of money you are entitled to receive by reason of the taking. The United States Constitution requires that a government pay "just compensation" for all property that it confiscates and that owners of property condemned for future use be afforded due process of law. In order to determine what you are entitled to receive, many factors come into play:

• The landowners are required to prove, by the greater weight of the evidence, that they are entitled to receive compensation, and the amount of such compensation.
• The measure of damages is the fair market value of the property at the time of the taking (the date when the lawsuit is filed).
• The fair market value of any property is the amount which would be agreed upon as a fair price by a willing owner who wishes to sell and a buyer who wishes to buy.
• THE HIGHEST AND BEST USE is what you are seeking. We can explain this concept when you call.

It is also important for you to know what is typically not recoverable, including:

• Lost profits
• Loss or damage to business goodwill
• Lost Rents
  • But this information may be introduced in determining FMV
• Cost of removing fixtures and appliances used in leased property
  • This is amounts over the "relocation assistance"
• Damage to personal property

There are five (5) distinct stages for an Eminent Domain/Land Condemnation case:

Stage 1 is Planning. The Department of Transportation, City, County, Utility Company or other condemnor will, of course, undertake planning. During this process, the scope of the project takes shape. During this phase, you can determine whether the proposed plans will impact all or a portion of your land.

Stage 2 is Negotiation: A Right of Way Agent will contact you after the project has been finalized and approved. This agent will provide you with plats and maps that show the project's scope and how much of your land will be needed by the condemnor. Sometimes, the Right of Way Agent will make an offer to purchase your property. This offer is usually based upon an appraisal made by someone who was hired by the condemnor. Please understand that the Right of way agents have only limited authority to pay for land. You should make sure that the offer includes all the compensation to which you are entitled. This should include payment for the land taken, but also payment for damages to the property you have left. Some additional damages are compensable.

Stage 3 is Condemnation: If you and the agent are unable to agree on the amount of compensation, the condemnor will file condemnation lawsuit in Superior Court of the county where the land is located. You will receive a Summons and Complaint. Filing a condemnation action is the process that the condemnor must undertake in order to acquire ownership of the portion of your property it needs for its project. In most cases, ownership of the land that the condemnor needs will pass to the condemnor the moment the condemnation action is filed. When the condemnor files the lawsuit, it must also deposit what it believes to be "just compensation" with the Clerk of Court. The deposit amount is often that amount initially offered to you by the Right of Way agent. You can take the deposit out of the Clerk's office and still argue that you are entitled to more money for your land.

Eminent domain/condemnation actions are very different from other types of lawsuits. For one thing you will have between 120 days to 12 months to file a response or "Answer" to the Complaint. You may make an application to get the deposit out of the Clerk's office and into your hands. You should also cause a written Answer to be prepared and filed in order to contest the amount of compensation offered to you if the amount is too low.

Once the Answer is filed, Stage 4, Discovery and Mediation begins. Appraisals between the two parties are often exchanged, along with other information. The Court will order Mediation. Mediation is a mandatory process that involves all parties getting together in an informal setting with a mediator in hopes of settling the case prior to trial. The mediator is a neutral person that tries to get both sides to understand the other's position and reach an agreement. Many cases, although not all, will settle in mediation.

Stage 5 is Trial. Only a small percentage of cases ever go to trial. A trial usually lasts 3 to five days and a jury will hear testimony from you and the condemnor regarding the value of your property and the amount of compensation that you are entitled to receive. After the jury hears all the evidence, it will deliberate and return a verdict for the amount of "just compensation".

If you or a loved one is in need of legal assistance when faced with a loss of land through eminent domain, call Lea, Rhine & Rosbrugh, P.L.L.C. at 910-772-9960 or toll free at 1-866-772-9960 or submit an online questionnaire. A lawsuit must be filed before an applicable expiration date, known as a statute of limitations, so please call right away to ensure that you do not waive your right to possible compensation