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Eminent Domain

     

What is eminent domain

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The fact that you’re here likely means the government is contemplating the acquisition of your property. As the timetable progresses, you will be required to make decisions about your property. Your rights will be affected. Make sure that you become informed so you know what you can and cannot do. Eminent domain, also known as condemnation, is simply the legal process that has been established to allow governments
to gain ownership of private property for a public use. The eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If these tests are met, the government cannot be stopped from taking your property, but the government cannot dictate the price it’s willing to pay, either.

What to Expect During the Eminent Domain Process

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When the government initiates the acquisition process, it will attempt to negotiate the purchase of your property just like any buyer might. If you and the government cannot agree on a price, though, the government can proceed with eminent domain. Keep in mind that the government is like any buyer, it will want to buy your property as cheaply as it can.

When the government makes you an offer, it will tell you that it represents fair market value. It may even show you an appraisal. But be aware, appraisals can vary, and the governments may be a low one. If you reject the government’s offer, it still has to pay you that money, and this does not jeopardize your right to get more money in the eminent domain hearing.

Eminent domain formally begins when the government starts a lawsuit to take your property. These lawsuits do not affect your credit rating or allege that you have done anything wrong. DO NOT BE INTIMIDATED BY A THREAT OF EMINENT DOMAIN. Once the government initiates eminent domain, you will need to retain an eminent domain lawyer to help you obtain just compensation. Most lawyers work on a contingent fee basis, where the lawyer takes one-third of the additional money they recover for you.

Property owners are usually responsible for costs, with the primary cost being the expert(s) used to determine the value of the claim, such as an appraiser. In some states, your attorney’s fees and costs are paid for by the government if you are successful at pursuing a claim. Select your state to learn more.

Property owners who are forced to relocate their home or business are also entitled to relocation benefits. Relocation is an administrative process established by the condemning authority that varies widely from city, county and state. Normal relocation benefits include actual moving of personal property and reestablishment costs. A claim for relocation benefits is independent of the eminent domain additional damages claim and is typically negotiated between the property owner and the condemning authority. In some cases, a residential property owner could be entitled to significantly more than what they could receive through negotiations with the condemning authority. Also, complex relocations do arise for businesses with expensive fixtures and equipment. In these situations, it may become necessary for an owner to enlist the help of an eminent domain expert to calculate and negotiate these costs with the condemning authority. Learn more about relocation benefits in eminent domain.

How Large is my Claim?

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Whether you sell your property to the government before eminent domain formally begins or let them take it by eminent domain, the law requires that the government pay you just compensation for your property. DO NOT ACCEPT LESS. You should know that just compensation often involves a wide range of issues which government appraisers may neglect to consider, such as highest and best use, or damages to your remainder parcel.

When determining the size of your claim, we review the government’s appraisal to determine if the direct and indirect (severance) damages were identified and valued accurately. If they failed to consider damages that lead to a higher amount of just compensation, we’ll identify and quantify these damages to determine the size of the claim.

We review appraisals from property owners around the country on an ongoing basis. Our skill in damage claim analysis allows us to quickly assess the strengths and weaknesses in appraisal reports and provide a thorough case analysis to property owners.

Generally, we apply several techniques when determining the value of your claim. We determine your property’s highest and best use, even if that use is different than its current use. We then determine the value of your total parcel before the taking and the value of your parcel after the taking. The difference in value usually represents the amount of money you’re entitled to receive. In determining after value, we take into consideration access changes, non conforming use, current zoning and development restrictions. We also consider loss of parking, relocation, changes in highest and best use, etc. Read more about eminent domain damages, severance damages and partial takings.

Frequently an owner will only receive full compensation by allowing condemnation to occur. In condemnation an owner can show that the rules for highest and best use will produce a higher price than the amount offered by the government. In many states an owner’s attorney fees can also be paid by the government. Continue reading to learn more about attorney fee recovery in your state. If you’re instincts tell you that your offer is too low, it probably is. DO NOT BE PRESSURED TO TAKE A LESSER AMOUNT BY THE THREAT OF EMINENT DOMAIN.

Do I need to Hire a Lawyer to Pursue my Claim?

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Eminent domain is an unwanted government intrusion into your life that will force you to make decisions about your property and your rights. Do you sell your property outright to the government? Do you proceed with condemnation? Do you hire an attorney?

Whether you hire an attorney depends upon your case. If you have an inverse condemnation case, or if you’re challenging the government’s right to take, then yes, you need an attorney. If the government gives you a ‘low ball’ offer and you want to pursue additional compensation, then you’ll need an eminent domain attorney to guide your through the eminent domain process and help you properly interface with the condemning authority. You will also need assistance with determining the size of your claim, identifying the necessary experts, negotiating your case, and taking your case to trial if negotiations cannot be reached.

Don’t be surprised if you’re unable to quantify or assess your damages; no one expects you to be an expert on land valuation in eminent domain cases. In fact, the government is counting on this.

To determine if you have a case, you need to consult with an eminent domain lawyer who can identify damages that lead to additional just compensation. If you consult with an attorney who doesn’t have this experience, they may overlook damages that could result in a larger recovery. Because of the highly specialized nature of eminent domain law, very few attorneys can claim expertise in this area. If you’re going to consult with and hire an attorney, make sure you work with a lawyer who only represents property owners in eminent domain cases.

Most eminent domain attorneys conduct a free case evaluation prior to recommending representation. Armed with this information, you decide whether it’s worthwhile to hire an attorney and pursue your claim. Continue reading to learn more about the costs and fees incurred when pursuing a claim.

Can I afford a lawyer?

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The most blatant eminent domain abuse occurs when the condemning authority makes “low ball” offers. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. This problem is particularly acute for property owners with “small claims”. These are claims where just compensation may be significantly more than the offer (100% or more), but the dollar amount is relatively small.

An owner can only afford to hire an attorney in this situation on a contingent fee basis, but many attorneys won’t take such a case or will only argue to go so far as negotiating a settlement. The condemning authority knows this and has little incentive to move off the “low ball” offer. The motivation to negotiate honestly, and even avoid low ball offers to begin with, increases significantly if the condemning authority can be liable for the attorney’s fees incurred by the property owner.

The following states have attorney fee recovery statutes where certain thresholds are met:
Oregon, Washington, California, DelawareIdaho, Montana, Colorado, Oklahoma, Iowa, Minnesota, North Dakota, South Dakota, Wisconsin, Michigan, Indiana, New York, South Carolina, Florida, Arkansas, Louisiana, Wyoming, and Alaska

These statutes allow property owners to recover 100% of their claim by forcing the government to pay their attorney’s fees and in some states, their costs. Even if your state does not require the government to pay costs and fees, you can still hire an attorney on a contingent fee basis. With a contingent fee structure, the attorney only gets paid if they are successful at obtaining additional just compensation. In this situation, their fee is typically one-third of the recovery. Learn more about our fees.

Eminent Domain in Your State

You should know that your rights as a property owner vary significantly by state.  Also, the eminent domain process differs between states, and in some states attorney fee’s will be reimbursed by the condemning authority.  Because the law is unique in each state, we have devoted the remainder of our website to providing you with state specific information on the eminent domain process, your property rights, and attorney fee recovery.

Please select your state to learn more.

 

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” …It is so refreshing to know a law office that does what it says it will do…you are truly an expert in this field and I am greatful…”

- Jerald Lang,Marshfield, WI

“[I was] very satisfied. [We] got more money than the DOT offered. [It was] great working with Biersdorf & Associates.”

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