Summary of Eminent Domain in Illinois
When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them and they know how the rules affect property owners. If the government is taking your land, make sure that you become informed so that you know what you can and cannot do. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading to learn about the Illinois eminent domain process, your rights as a property owner and hiring an Illinois eminent domain attorney.
Our Illinois offices are located in Chicago and Champaign where we have several eminent domain of-counsel attorneys representing property owners throughout the state. Did you know that most eminent domain attorneys work on a contingent fee basis? With this fee structure, the attorney assumes the risk of earning a fee.
Illinois Eminent Domain Process
In the state of Illinois, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Illinois eminent domain process.
Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.
The majority of eminent domain cases in Illinois meet the requirement for public purpose and necessity. Examples of cases that meet these criteria are: property acquisition for highway improvement projects, and acquisitions for utility projects such as installation of power lines and sewer systems.
If the taking of your property meets the requirements for public necessity or public purpose, then continue reading to learn more about the eminent domain process in the state of Illinois. Please note that there are extended explanations for all of the numbered sections in the flow chart. Additionally, links to specific state statues are also provided, where applicable. Please be aware that the flow chart and explanations are simply an overview of the process and should not be used as a tool to take matters into your own hands.
Here is a flow chart that explains the eminent domain process in Illinois:
1. Government Announces Project and Properties Affected
When the project is announced and prior to any proceedings, the government must designate an employee of the state to respond to requests that arise from the notification of the project. This person shall respond to property owners’ questions about the process and their rights under eminent domain procedures. Note: this person may not provide legal advice or legal referrals. (735 ILCS 30/10-5-15(b))At the time of first contact with the property owner, the state must provide them with in writing a description of the property that the agency seeks to acquire, contact information for the state designated employee mentioned above, they must identify the state agency seeking to acquire the property, the general purpose of the proposed acquisition, as well as the type of facility to be constructed on the property. (735 ILCS 30/10-5-15(c))
2. Property Owner Hires Attorney
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.
3. Government Inspects & Values 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.
4. Government Makes Offer to Property Owner
The government must send a letter by certified mail to the owner of the property at least 60 days before filing an eminent domain petition. The letter must contain the amount of compensation and the basis for computing it, a statement that the government continues to seek a negotiated agreement with the property owner, and a statement regarding the government’s intention to acquire the property through the use of eminent domain if negotiations are not successful. (735 ILCS 30/10-5-15(d))
5. Attorney Evaluates Offer
After the condemning authority makes an offer, the property owner’s attorney will evaluate the appraisal and offer to determine if it represents just compensation. If the attorney finds errors in the condemning authority’s valuation, then they will determine how best to proceed.
6. Determine Negotiation Strategy and When Fees and Costs are Recoverable
The attorney will need to assess all damages that were not included in the condemning authority’s valuation and determine the full amount of compensation owed to the property owner. The attorney will then determine how best to present this information to the condemning authority during the negotiation phase.At this time, the attorney can determine whether or the property owner can qualify for attorneys fees reimbursement by the condemning authority. In IL, attorney’s fees are generally only reimbursed when the acquisition of property is for private ownership. This falls under several categories (735 ILCS 30/10-5-110) and (735 ILCS 30/5-5-5):1. Acquisition for private ownership for a public use. Takings under this category usually relate to land use for parking lots used predominately for airports, mass transit facilities, passenger rail, private property that operates a water supply or recycling plant, etc.2. Acquisition for private ownership for the elimination of blight.3. Acquisition for public ownership with private control. Takings under this category usually relate to land use for universities, hospitals, mass transit facilities, airports, ect.
7. Select Appraiser to Determine True Property Value
Selecting an appraiser who can accurately value your property and assess the damages to any remaining parcel is one of the most critical steps in any eminent domain claim. Many times, property owners try to take matters into their own hands, and unknowingly hire an inexperienced appraiser. Unfortunately, this step could ruin a good claim. Visit our Hiring Experts page for an example of how hiring the wrong appraiser can ruin your claim. Make sure you consult with an eminent domain attorney before hiring an appraiser on your own.
8. Property Owner Settles with Government
If the property owner signs the final settlement papers, they waive their right to pursue additional damages and the case is complete. The property owner should only settle with the government if they are satisfied with the amount of compensation offered.
9. Deed is transferred
Once the final settlement papers are executed by the property owner, the deed is transferred to the condemning authority. It is at this time that ownership is transferred from the property owner to the condeming authority.
10. Owners Case is Done
The owner is paid in full, the condemning authority owns the property, and the owner’s case is completely done. The property owner can no longer file a claim to challenge the taking or to receive additional compensation.
11. Property Owner Does Not Accept Offer
If, after negotiations, the property owner is not satisfied with the amount offered by the condemning authority, they can refuse the offer and allow condemnation to occur.
12. Government Initiates Eminent Domain Proceeding
If a negotiated sale cannot be reached, the condemning authority may apply to the circuit court of the county where the property in question is located by filing a complaint with the clerk of court. The complaint will reference the purpose of the taking, a description of the property, and must include all property owners’ names, along with a request that compensation be paid to the property owner (735 ILCS 30/10-5-10)Any time after the complaint has been filed, but before judgment, the condemning authority may motion to take title and possession of the property if needed; this procedure is known as a ‘quick take’. (735 ILCS 30/20-5-5) If a quick-take motion is filed, the court will set a date for a hearing, no less than 5 days after the motion is filed. At the hearing, if the court has not previously determined that the condemning authority has the right to exercise eminent domain, then the court will hear and determine that issue first. The court’s order on this issue can be appealed by either party within 30 days. (735 ILCS 30/20-5-10(a)(b))If the court determines the condemning authority has the right to take the property and no appeal is filed, the court may appoint 3 appraisers to evaluate the property in question and report their findings to the court. (735 ILCS 30/20-5-10(d) The court’s preliminary finding of just compensation may not be used as evidence in further proceedings regarding just compensation. Once the condemning authority deposits the amount determined by the court with the country treasury, the court will enter an order of taking and the condemning authority will take possession of the property at a date determined by the court. (735 ILCS 30/20-5-15(a)
13. Owner Makes Offer of Settlement in Appropriate Cases
This section is only applicable for the acquisition of property for private ownership or control. Acquisition for a road improvement project would not fall under this category.Up to 14 days before the trial to determine just compensation, the property owner may submit an offer of settlement to the condemning authority. (735 ILCS 30/10-5-110(b)) If the property owner does not make an offer, they will not be entitled to reimbursement of attorney’s fees and costs. The condemning authority has 10 days to accept the offer, and acceptance must be given with a written offer. (735 ILCS 30/10-5-110(c)) If the offer is rejected, then the offer is withdrawn from the trial and may not be used as evidence.If the condemning authority does not accept the property owners offer and the final just compensation determined by the court is equal to or greater than the property owners offer, then the condemning authority must pay the property owners’ attorney’s fees and expenses as outlined in their attorney fee recovery statue. (735 ILCS 30/10-5-110(e))
14. Jury Trial on Compensation
Unless a quick take action was filed (as described in #12), the hearing must not occur earlier than 20 days after service upon the property owner. (735 ILCS 30/10-5-30) A jury may be present at the trial, at the request of the property owner. If the property owner requests a jury, a demand must be filed before the return date of the summons. (735 ILCS 30/10-5-5)Either party may request the jury to examine the property in question. After viewing the property, and upon hearing proof of valuation from both parties, the jury must create a report in writing that clearly states the amount of compensation owed to the property owner. (735 ILCS 30/10-5-45)The condemning authority may enter and take possession of the property once compensation has been paid to the county treasurer, and either party may appeal the court’s final decision on just compensation. (735 ILCS 30/10-5-70(a))
The eminent domain process in the state of Illinois is complicated, and if you are undergoing eminent domain and want to make sure you are justly compensated, you should speak to an eminent domain attorney. Speaking to an eminent domain attorney regarding your case will keep you informed of your rights, the eminent domain process, and whether or not your attorney’s fees will be paid for by the state of Illinois.
Illinois Property Rights
The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.
Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership. The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity. While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.
The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws. The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition gave a letter grade of a D+ to the state of Illinois for their property rights, here is what they said:
“Illinois presents another example of eminent domain reform that sounds more impressive than it really is. The Illinois General Assembly passed Senate Bill 3086 (2006), which purportedly limits the taking of private property for private development. This might be technically true, as the new law generally does prohibit government officials from condemning property for private development. But the legislature built in exceptions that significantly undermine the good that the bill otherwise might have done. The new law still allows the use of eminent domain to acquire property in a so-called blighted area. While at least five factors must be present for an area to qualify as blighted, the vague and illogical list of factors for a blighted area represent some of the worst examples in law, including “obsolescence,” “excessive vacancies,” “excessive land coverage,” “deleterious layout,” and “lack of community planning.” The bill also still allows condemnations for private development, as long as economic development is a “secondary purpose” to the primary purpose of urban renewal “to eliminate an existing affirmative harm on society from slums to protect public health and safety.””
“Since the state’s statutes still allow entire areas to be designated blighted on account of a few properties, the threat of eminent domain abuse still looms large in Illinois. SB 3086 did improve the situation by prohibiting the seizure of “production agriculture” for private development and by requiring the government to prove that an area is blighted before a condemnation can proceed. But unless citizens convince the General Assembly to create a tighter definition of blight and to assess properties on a parcel-by-parcel basis, Illinois will not avoid eminent domain abuse similar to that evidenced in Kelo.”Castle Coalition
Hiring an Eminent Domain Attorney in Illinois
If your instincts tell you that the offer from the government is low, then it probably is. However, determining just compensation often requires an attorney to identify damages and help guide you through the Illinois eminent domain process. Additionally, other experts are needed such as an appraiser and maybe an engineer or planner to provide evidence and expert testimony on your behalf.
Most eminent domain attorneys work on a contingent fee basis. With this fee structure, the attorney assumes the risk for earning a fee. Property owners are generally only responsible for paying costs, with the primary cost being the appraiser who values the property. Because of the contingent fee structure, most eminent domain attorneys will conduct a free case evaluation for property owners prior to recommending representation. Also, Illinois has passed legislation that requires the condemning authority to pay attorney’s fees in certain situations.
If you’re affected by eminent domain, you should obtain a consultation so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation.
Very few attorneys can claim expertise in the area of eminent domain law. Make sure you consult with an eminent domain trial attorney who can effectively identify damages and select the necessary experts. Your attorney should also be able to interface with the condemning authority and be willing to take your case to trial if negotiations can not be reached.
As you are likely aware, taking matters into your own hands when it comes to eminent domain is highly discouraged, and could result in a scenario where you do not receive just compensation. For instance, you could end up ruining a good claim by attempting to negotiate with the condemning authority prior to consulting with an eminent domain attorney, or you might settle for much less than what you deserve. Please read Why Act Now in our Resource Center to learn more about why you should hire an eminent domain attorney early in the process.
Attorney Fee Recovery Statutes in Illinois
- Attorney’s fees may be recoverable in Illinois if:
- The property owner is successful with an inverse condemnation case (735 ILCS 30/10-5-65)
- The condemning authority dismisses the action (735 ILCS 30/10-5-70)
- The court determines that the condemning authority cannot acquire the property in question through eminent domain (735 ILCS 30/10-5-70)
- The condemning authority does not pay the property owner within amount of time specified by court (735 ILCS 30/10-5-70)
- The condemning authority does not accept the offer of settlement from the property owner in a private interests condemnation action and the final compensation awarded for the property owner is equal to or greater than the property owner’s last written offer (735 ILCS § 10-5-115).
There are specific types of cases that fall under the last bullet point above. Cases that generally fall into this category include:
1. Acquisition for private ownership for a public use. Takings under this category usually relate to land use for parking lots used predominately for airports, mass transit facilities, passenger rail, private property that operates a water supply or recycling plant, ect.
2. Acquisition for private ownership for the elimination of blight.
3. Acquisition for public ownership with private control. Takings under this category usually relate to land use for universities, hospitals, mass transit facilities, airports, ect.
If a property owner’s case falls under the category of acquisition for private ownership or control (last bullet point), then at the court’s discretion, attorney’s fees are awarded based on net benefits and non-monetary benefits obtained for the property owner as identified by the court. Net benefits refer to the difference between the final judgment and the last written offer made by the condemning authority before the filing date of the condemnation complaint.
The court may also consider non-monetary benefits obtained through the efforts of the attorney, if they are quantifiable by the court with a reasonable degree of certainty. If awarded, the calculations shall be made according to these percentages, as subject to the Illinois Rules of Professional Conduct (735 ILCS 30/10-5-110(f)):
(1) 33% of the net benefit if the net benefit is $250,000 or less;
(2) 25% of the net benefit if the net benefit is more than $250,000 but less than $1 million; Or
(3) 20% of the net benefit if the net benefit is $1 million or more
Despite the state of Illinois passing some legislative reform, the bill itself had little to no significance in helping curb eminent domain abuse. The vague language allows for loopholes and vacancies for condemning authorities and private entities to get around in order to condemn private property for private use or development. Click to read the full version of Senate Bill 3086.
Questions about Illinois Eminent Domain Law or if you’re interested in a free consultation, contact us today! If you want to call us, our main number is 866-339-7242. We look forward to hearing from you.