Wyoming eminent domain attorney fee recovery statute

In 2013, two states passed legislation requiring the condemning authority to pay a property owner’s attorneys fees if the amount of just compensation determined by the courts is greater than the amount offered by the government or condemning authority.

Arkansas was the first state in 2013 to pass this type of legislative reform and Wyoming was the second state.  For Wyoming landowners, Wyo. Stat. Ann. § 1-26-509 now states that if the court or jury finds that the amount of just compensation exceeds the condemning authority’s offer by 15% or more, then the government or condemning authority shall reimburse the landowners for their litigation expenses.

We’ve said it before and we’ll say it again.  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 pursue a claim on their behalf.  Although a property owner might be successful at pursuing an additional damages claim, they are not entirely happy when a portion of that claim must be paid to the attorney.

This legislation should motivate the condemning authority in Wyoming to negotiate honestly with property owners and their attorneys, and even avoid low ball offers to begin with, because they can now be liable for the attorney’s fees incurred by the property owner.  Additionally, Wyoming’s legislation doesn’t appear prejudicial against small claimants, so land owners pursuing significantly more than the offer (100% or more) with relatively small dollar amounts should be able to secure quality legal representation in order to obtain just compensation.

Although the statute identifies a specific threshold that must be met in order to trigger the reimbursement of fees, the courts have yet to interpret the statute.  Will property owners be able to recovery fees on both an hourly and contingent fee basis?  Will the courts limit the attorney’s hourly rate for recovery?  How will they define ‘litigation expenses’?  Will that include all costs incurred?

Wymoning would go a long way in leveling the playing field between property owners and the government if they interpreted the statute liberally in favor of property owners.  The US Supreme Court has consistently held in condemnation cases, that the government’s obligation is to “put the owner in as good a position pecuniary as if the use of their property had not been taken” Monongahela Nav. Co. v United States, 148 U.S. 312 (1893); Phelps v. United States, 274 U.S. 341 (1927); Olson v. United States, 292 U.S. 296 (1934).   That is, property owners should receive fair and just compensation and not be at any financial loss resulting from the government’s action to seize their property.

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