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Eminent Domain Frequently Asked Questions

  1. How does the state acquire my property?
  2. What criteria are important for selecting an appraiser
  3. Can I stop the government from taking my property by the use of its eminent domain powers?
  4. The government is acquiring some of my parking space. Should the government pay me more than just the price of the land under the parking area being taken?
  5. Will the eminent domain laws support my claim for more money based upon a potential zoning change to the property?
  6. When the government talks to me about acquiring my property, it threatens me with condemnation if I don’t voluntarily sell my property to them. What penalties are assessed against me if I force the government to condemn my property rather than voluntarily selling it to them?
  7. How do I get paid in an eminent domain proceeding if I don’t agree to voluntarily sell my property to the government?
  8. If I want an attorney in an eminent domain matter, what criteria should I consider in selecting an attorney?
  9. Can I assume that the government will treat me fairly under the eminent domain rules?
  10. Since the government is required to pay me the fair market value for my property under the eminent domain rules, shouldn’t I just accept the offer given to me?
  11. Should I receive extra compensation if the government’s eminent domain acquisition causes my remaining property to become nonconforming with zoning ordinances, e.g. set back requirements, lot coverage ratios, parking requirements, etc.?
  12. Will changes in access to my property result in extra compensation to me under the eminent domain rules?
  13. What changes to my access will result in compensation from the government under the eminent domain rules?
  14. Can I be compensated if the government’s eminent domain acquisition disadvantageously effects my business operation?
  15. Is it possible that the government’s eminent domain acquisition could produce compensation for me for damage to my property that is not readily apparent to me?
  16. If the government’s eminent domain acquisition causes some of my remaining property to be landlocked, am I forced to sell this landlocked parcel to the government in order to obtain its full value?
  17. If a government’s eminent domain project leaves me with an access but that access is limited to a residential or agricultural driveway (i.e. less than 20 to 25 feet wide), can I receive additional compensation for this limitation under eminent domain rules?
  18. If a government’s eminent domain project obstructs the visibility or view for my property, will this condition justify compensation for me?
  19. If a new highway splits my property into two or three smaller parcels, will this condition justify compensation for me under eminent domain rules?
  20. Will the presence of contamination on my property justify a lower value for the property in an eminent domain matter?
  21. Eminent Domain Frequently Asked Questions

How does the State acquire my property?

The State, or a designated developer, can negotiate to buy your property just like any other buyer might. If you and the State can not agree a price,   though, the State can proceed with eminent domain. Eminent domain is simply the legal process that has been established to allow governments to gain ownership of private property. Eminent domain formally begins when the State starts a lawsuit to take your property. These lawsuits do not affect your credit rating or allege that you have done anything wrong.

What criteria are important for selecting an appraiser for an eminent domain case?

An eminent domain appraiser should meet the following standards: a. Thorough understanding of eminent domain valuation rules; b. Experience with property type being acquired; c. Ability to write a comprehensive and thoroughly reasoned appraisal report; and, d. Ability and experience as a witness in court.  Learn more about the importance of selecting an appraiser in eminent domain law.

Can I stop the government from taking my property by the use of its eminent domain powers?

The eminent domain process can be stopped if the proposed taking does not meet the requirements for public necessity or public purpose. If these tests are met, the government cannot be stopped from taking your property, but the government cannot dictate the price it will pay, either.  Learn more about challenging the right to take in eminent domain.

The government is acquiring some of my parking space. Should the government pay me more than just the price of the land under the parking area being taken?

Usually, yes. For most properties the existence of parking is critical for the ability to use the property as it was intended. When parking is lost due to eminent domain, the remaining property may have great difficulty supporting the businesses that remain there. This depresses the value of the remainder beyond the loss of value of the parking area. This is an example of severance damages that the government frequently chooses to ignore or dramatically understate in eminent domain cases.

Will the eminent domain laws support my claim for more money based upon a potential zoning change to the property?

Yes, if it is reasonable that someone would buy property and change the zoning based upon a more valuable use than current zoning allows. Then the value of the property under eminent domain rules must be based upon the more valuable use.

When the government talks to me about acquiring my property, it threatens me with condemnation if I don’t voluntarily sell my property to them. What penalties are assessed against me if I force the government to condemn my property rather than voluntarily selling it to them?

None. By forcing condemnation, the property owner is simply exercising all the constitutional and statutory rights that the law allows. It is the only way for the owner to receive the full value for his/her property if the government refuses to voluntarily pay that amount.

How do I get paid in an eminent domain proceeding if I don’t agree to voluntarily sell my property to the government?

When an owner forces condemnation, the government must pay its good faith value to the owner (usually the offer) at the beginning of the condemnation.

If I want an attorney in an eminent domain matter, what criteria should I consider in selecting an attorney?

Important considerations when hiring an attorney for an eminent domain matter are: a. Handles eminent domain cases on a regular basis rather than occasionally; b. Knows how to evaluate appraisers and appraisal reports; c. Will not be compromised by local politics or other potential work representing the government; and, d. Will not hesitate to take a case to trial and knows how to develop a trial strategy.  Learn more about selecting an eminent domain attorney.

Can I assume that the government will treat me fairly under the eminent domain rules?

No. The government is no different from any other buyer of real estate. It wants to buy property as cheaply as it can. If an owner agrees to sell too cheaply, it’s because the government does not have to look out for a property owner’s interests. Like any real estate buyer, the government wants to pay the lowest price.

Since the government is required to pay me the fair market value for my property under the eminent domain rules, shouldn’t I just accept the offer given to me?

No. Fair market value may vary dramatically depending upon the highest and best use that is selected for the property. The government will frequently, if not usually, choose a lesser highest and best use for a property it seeks to acquire through eminent domain. This justifies the government offering to pay a low “fair” market value for land it seeks to acquire. Property owners should insure the correct highest and best use is applied to their property. This may often be different from the actual use employed by the current owner.

Should I receive extra compensation if the government’s eminent domain acquisition causes my remaining property to become nonconforming with zoning ordinances, e.g. set back requirements, lot coverage ratios, parking requirements, etc.?

Absolutely. These circumstances are examples of severance that require compensation beyond the value of the property actually taken through eminent domain. Owners should beware, though, because, while the government may recognize these items as severance, it will frequently understate the level of damages resulting from severance.

Will changes in access to my property result in extra compensation to me under the eminent domain rules?

Yes it can. Access to property is an integral part of the rights of property ownership. When access is adversely changed in a significant way or lost because of eminent domain, the owner’s ability to use the property is restricted. This restriction requires payment from the government.

What changes to my access will result in compensation from the government under the eminent domain rules?

There are generally three access changes caused by eminent domain that require compensation: a. Direct access before the acquisition is changed to indirect, roundabout access after the taking; b. The taking results in total loss of access; or, c. Access after the taking is limited or restricted to certain uses. Beware that the government will often acknowledge the first two access changes but will understate the required compensation. The government usually won’t acknowledge that the third situation should result in compensation. In the infrequent situations that it is acknowledged, the damages are usually understated.

Can I be compensated if the government’s eminent domain acquisition disadvantageously effects my business operation?

If the disadvantage to an owner’s business also affects the value of the real estate, compensation must be paid. Otherwise, if the damages are to the business only, compensation is generally not awarded. There are exceptions, though, but they must be analyzed on a case-by-case basis. If a business is forced to move because of an acquisition, the business is always entitled to relocation benefits.

Is it possible that the government’s eminent domain acquisition could produce compensation for me for damage to my property that is not readily apparent to me?

Very definitely. Two examples best describe this possibility. First, if the taking causes the remaining property to become non-conforming with applicable zoning codes, the owner may not recognize the impact until he/she sells the remaining property or attempts to improve the property with an addition. In the second example, the government may restrict access for the existing use only. When the owner attempts to sell the property later or develop if for a higher, more valuable use, that attempt will be denied.

If the government’s eminent domain acquisition causes some of my remaining property to be landlocked, am I forced to sell this landlocked parcel to the government in order to obtain its full value?

No. The government can only forcibly acquire property through eminent domain that is needed for its project. Adjoining property that is landlocked can be retained by the owner, but the government must pay for its loss of value. Frequently this is all or nearly all of the property’s full value, however, the government usually offers only a small fraction of the full value.

If a government’s eminent domain project leaves me with an access but that access is limited to a residential or agricultural driveway (i.e. less than 20 to 25 feet wide), can I receive additional compensation for this limitation under eminent domain rules?

If your property could reasonably be developed in the foreseeable future to a more valuable use than a single residence or agricultural land, then additional compensation must be paid under eminent domain rules.

If a government’s eminent domain project obstructs the visibility or view for my property, will this condition justify compensation for me?

If the loss of visibility or view is associated with a physical taking, compensation can be justified. If the same loss of view or visibility is not accompanied by a physical taking, generally compensation is not warranted. This is a new area of compensation that will be refined by future eminent domain rulings.

If a new highway splits my property into two or three smaller parcels, will this condition justify compensation for me under eminent domain rules?

If the division of the property caused by eminent domain results in greater inefficiency for using the remaining property, then compensation must be paid to the owner.

Will the presence of contamination on my property justify a lower value for the property in an eminent domain matter?

This issue has not yet received widespread attention from the courts. The government seems to uniformly make offers based upon substantial discounts for contamination. Some courts are rejecting those discounts in certain situations. Biersdorf & Associates has obtained beneficial rulings in both New York and Minnesota that contamination should not be considered to reduce an owner’s claim.  Learn more about contaminated property in eminent domain law.

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