New York Eminent Domain Process

Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.

Before the condemning authority makes an offer, they must determine the value of the property being taken, and whether or not the taking results in damages to the remaining land. This valuation is determined by an appraiser, and is then reviewed by the condemning authority before an offer is made.

Depending upon the complexity of the case and the extent of additional damages, it may be necessary to file a claim for additional damages in order to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.

The offer made by the government must equal 100 percent or more of the highest appraised value determined by the condemning authority. (NY EM DOM PROC § 303)

The property owner will be provided with 2 copies of the offer; an offer for final payment and an offer for advanced payment. By signing the offer for final payment, a property owner is giving up their right to pursue additional damages. By signing the offer for advanced payment, the property owner will receive payment and have the opportunity to pursue additional damages.

After the condemning authority makes an offer, the property owner's attorney will evaluate the offer to determine if it represents just compensation. If the property owner is entitled to additional compensation, the attorney will determine how best to proceed.

Having an appraisal which accurately addresses all damages and indirect damages is one of the most important factors in any eminent domain case. Oftentimes, the appraisal used by the condemning authority contains errors, thus leading to a lower offer of compensation for the property owner. Because of this, having a second appraisal conducted on the property can be a necessary step.

Before taking this step on your own, it is highly recommended to consult with an eminent domain attorney. An eminent domain attorney will thoroughly review the initial appraisal and determine its strengths and weaknesses. Based on this information, the attorney will indicate a selection for the most qualified appraiser to value the condemned property in question, and determine the damages to any remaining parcel. Also, the attorney can work directly with the appraiser to make sure all conflicting issues are addressed. Remember, selecting an unqualified appraiser may negatively impact the amount of compensation the property owner is owed.

After the second appraisal is complete (if necessary), the attorney will carry out the initial negotiating strategy previously discussed.

If the property owner elects to sign the final settlement documents, they waive their right to file a claim for additional damages. If the property owner takes this action, their case is done.

In order to receive compensation, the property owner must sign either the agreement for advanced payment or the agreement for final payment. If the property owner is pursuing additional damages and would like receive payment for the condemning authority's valuation, then they must sign the agreement for advanced payment.

The offer is deemed rejected if, within 90 days, the property owner fails to notify the condemning authority in writing that the offer for advanced payment or final payment is accepted. In this case, the property owner can elect to accept the offer at a later date and receive compensation without further court action.

The property owner is not waiving their right for additional compensation by accepting the offer for advanced payment. (NY EM DOM PROC § 304) Typically, once the offer for advance payment is signed, the condemning authority will file an acquisition map and take control of the property. If the offer is not signed, the condemning authority will usually wait until several months prior to construction before filing the acquisition map. (NY EM DOM PROC § 402).

The property owner will receive payment for the condemning authority's valuation by signing the offer for final payment, or by signing the offer for advanced payment. They will receive payment for their additional damages once their case is completed.

The property owner must, within three years after service of notice of acquisition or vesting, (whichever is later) file a claim for additional damages with the clerk of court having jurisdiction over the matter. (NY EM DOM PROC § 503)

The court files a decision with the clerk of the court and the property owner has the right to appeal the decision. The justice may or may not prepare a pre-trial conference to discuss the appeal.

Negotiations are conducted with the designated representation of the condemning authority (the condemnor). This is usually a non-lawyer. Sometimes the condemnor hires outside consultants to act as their acquisition agents. In those instances, the negotiations will occur with an employee of that consultant, who most likely has no real negotiation authority. This person simply acts as a conduit to communicate negotiations to the condemning authority, i.e. the property owner will NOT be negotiating directly with a person with decision making authority.

DO NOT rely on any oral promise made during negotiations. If it is not in writing, it does not exist and a property owner cannot rely on the promise. If a property owner cannot reach a settlement, statements made by the owner may be later used against the owner if the owner pursues an eminent domain claim for more money. This problem does not exist if a property owner has a lawyer conducting the negotiations.

Because NY law allows for the recovery of costs and attorney's fees, different negotiation strategies will be recommended depending upon the size of the claim that the property owner can make. There is no specified length of time for condemning negotiations; they simply end under one of two scenarios. One, the property owner and condemnor reach an agreement, or two, the property owner and condemnor never reach agreement and the condemnor files an acquisition map to acquire title by eminent domain.

Because [state] law allows for recovery costs and attorney's fees, the timing for obtaining an owner's appraisal depends on the size of the claim the owner has. If the claim is large, it will be an advantage to wait to order the appraisal. If the claim is small, it is best to order the appraisal at the earliest convenience. The owner's attorney should be able to evaluate the magnitude of the owner's claim. Eminent domain cases often present valuation issues that are not "black and white", meaning there are a lot of grey areas. Consequently, there can be differences in calculating differences for each case. Sometimes these differences can be significant. When selecting an appraiser, it is important for property owners to use an appraiser who understands the grey areas from a property owner's perspective.

Under NY laws, a property owner cannot receive any compensation until an Agreement for Advanced Payment is signed. When an offer is made by the government, two different settlement forms are sent to the owner. One is a final settlement and the other is an advance payment. In order to receive any compensation at all, NY law requires the owner to sign at least one of these two documents. The owner must be very careful because the documents look very similar. If the owner signs the final settlement document, all rights to file a claim are out. To preserve the right to file a claim, the owner must sign only the Advanced Payment Form. Since the owner receives the same money either way, it is best to sign the Advanced Payment form to preserve claim rights.

Title to an owner's property transfers to the government when the government files an acquisition map. If an owner rejects to sign either an Advanced Payment form or a final settlement document, the acquisition map will usually be filed a few months before work on the project is to begin. Remember, if the owner doesn't sign either of these two forms, no payment is made to the owner. When the owner does sign one of the two documents, the acquisition map is filed soon afterward.

The transfer of title will occur by an acquisition map rather than a deed.

The owner needs to vacate the property by the time the title transfers to the government, unless arrangements are made in writing for the property owner to stay beyond that date. In that instance, the property owner will usually pay rent to the government for occupancy past the title transfer date. Sometimes, the relocation benefits are negotiated with the acquisition agent. Frequently, a special relocation expert will negotiate relocation benefits separately by law. Relocation benefits are separate and distinct from paid compensation for the property acquired.

Any additional damages will be paid after a case is taken to trial unless a negotiated settlement occurs prior to that time after a claim for additional compensation has been filed.

There is no set amount of time between the filing of a claim and the trial to determine compensation. Oftentimes it depends upon the size of the calendar for the judge who is assigned to the case. Typically, though, most cases will have a trial occur within 12 months after the claim has been filed.

By law the parties are not entitled to a jury for eminent domain matters. A judge may suggest the use of a summary jury proceeding, but that can only occur if both parties agree to that procedure.

A property owner never needs to initiate negotiations. In fact, depending upon the nature of the claim for the property owner, the negotiation strategy used by the owner may vary. The best recommendation is to have a knowledgeable eminent domain attorney evaluate the claim for the owner. Many lawyers will undertake this analysis at no charge. The result of that analysis will dictate the negotiation strategy that the property owner should follow in their case.