A Summary of Eminent Domain and Hiring an Eminent Domain Lawyer in Iowa
Few issues evoke such strong opposition as the taking of private land through eminent domain for a public use. 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. If you have any additional questions for an Iowa eminent domain attorney, feel free to contact us at (866) 339-7242.
Your initial question might be, can I stop the process? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading through to learn about the Iowa eminent domain process, your rights as a property owner and hiring an Iowa eminent domain attorney.
We are an Iowa eminent domain law firm with experience handling cases nationwide. We only represent property owners, never the condemning authority or government. We maintain an extensive practice in Iowa, with clients ranging from Des Moines to Waukon, and south to Fort Madison and many cities in between. Regardless of where you are in the state of Iowa, we are the Iowa eminent domain attorney of your choice.
Did you know that most Iowa eminent domain attorneys work on a contingent fee basis? With this fee structure, the attorney assumes the risk of earning a fee. Also, Iowa has a liberal attorney fee recovery statute, which means even small claimants can hire an experienced lawyer to help them obtain just compensation.
Iowa Eminent Domain Process
In the state of Iowa, 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 Iowa 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 Iowa 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.
Learn more about the eminent domain process in Iowa from our flow chart below:
1. Government Announces Project and Properties Affected
The condemning authority must provide written notice of a public hearing to each affected property owner, which shall be mailed at least 30 days prior to the hearing. (IOWA CODE § 6B.2A(1))
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 and Values Property
The condemning authority must appraise the property to be acquired in order to determine the fair market value. At a minimum, the appraisal must include, but is not limited to: an itemization of the appraised value of the real property or interest in the property, any buildings on the property, all other improvements including fences, severance damages, and loss of access. In determining fair market value of property, the acquiring agency shall not consider only the assessed value assigned to such property for purposes of property taxation. (IOWA CODE § 6B.45)
The condemning authority may waive the appraisal process if the property sought to be acquired has a low fair market value (such as a small easement taking for utilities). In lieu of an appraisal, a letter must be sent by certified mail to the property owner at least thirty days before negotiations, which includes the methods used in arriving at an offered price for voluntary easements including the range of cash amount of each component. (IOWA CODE § 6B.54)
4. Government Makes Offer to Property Owner
At least 10 days prior to negotiations, the condemning authority must provide the property owner with a copy of the appraisal. The appraisal sent to the property owner must be the appraisal used by the condemning authority to determine the amount they believe to be just compensation for the property. All other appraisals made on the property as a result of the condemnation proceeding are available to the property owner upon request. (IOWA CODE § 6B.45)
The condemning authority must make a good faith attempt to negotiate a purchase price with the property owner prior to filing a condemnation proceeding. (IOWA CODE § 6B.2B)
The offer made by the condemning authority may not be less than the fair market value as determined by their property appraisal, or less than the value determined under the acquiring agency’s waiver procedure for properties with a low fair market value. (IOWA CODE § 6B.2B)
Except when a property is being acquired for a street or highway project, an alternative purchase offer may be made to the property owner. The condemning authority may offer 130% of the appraised value plus payment to the owner of certain expenses (recording fees, transfer taxes, and similar expenses incidental to conveying the real property to the acquiring agency, and penalty costs for full or partial prepayment of any preexisting recorded mortgage entered into in good faith encumbering the real property). If the property owner accepts this offer, they are barred from claiming payment from the condemning authority for any other expenses allowed by the law. (IOWA CODE § 6B.2B)
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 condeming authority’s valuation, then they will determine how best to proceed.
6. Determine Negotiation Strategy
The attorney will need to assess all damages that were not included in the condeming 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 condeming authority during the negotiation phase.
7. Select Appraiser to Determine True Property Value
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.
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 by the condemning authority.
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. Owner’s Case is Done
The owner is paid in full, the condeming 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 condeming authority, they can refuse the offer and allow condemnation to occur.
12. Commissioners Appointed to Determine Compensation
If negotiations can not be reached, the condemning authority will submit a written application for condemnation to the chief judge of the judicial district in the county in which the property is located. In the application, the condemning authority will request for the appointment of a commission to appraise the damages in the proceeding. (IOWA CODE § 6B.3)
Once the application has been published or served to the property owner(s) and approved by the chief judge, it will be filed with the recorder of deeds. Once filed, several things occur: 1: the condemning authority has the right to acquire the property and condemnation is pending; and 2: the commissioners’ appraisement of damages must be submitted with in 120 days or else the condemnation application is null and void; in which case, the condemning authority must submit a new application. (IOWA CODE § 6B.3)
To determine just compensation, the county board will appoint at minimum, 28 possible commissioners, who are residents of the county. One-fourth of the persons appointed must be owner-operators of agricultural property, one-fourth of the persons appointed must be owners of city property, one-fourth must be licensed real estate salespersons or real estate brokers, and one-fourth must be persons having knowledge of property values in the county by reason of their occupation. (IOWA CODE § 6B.4)
The chief judge of the judicial district or the chief judge’s designee shall select six people from the list to determine compensation; two of which are owner-operators of agricultural property when the property sought to be condemned is agricultural land; two persons who are owners of city property when the property sought to be condemned is anything other than agricultural land; and two persons from each of the remaining two representative groups. (IOWA CODE § 6B.4)
The commissioners will view the property sought to be condemned to assess the damages, and create a written report that is delivered to the sheriff. The sheriff will then report in writing to both parties via ordinary mail the amount of the commissioners appraisement, and that any party may, with in 30 days, appeal the commissioners’ appraisement to the district court of the county in which the property is located and by giving written notice to the sheriff that the appeal has been taken. (IOWA CODE § 6B.18(1))
13. Owner Accepts Commisioners’ Award
If the property owner is satisfied with the amount of just compensation determined by the commissioners, then they may accept this offer. Once this offer is accpeted, their case is done. Because of this, the property owner should not accept this offer if they are not satisfied; they may still appeal this award.
14. Either Party May Appeal Commissioners’ Award
Within 30 days of the mailing of the appraisement of damages, either party may appeal the award. (IOWA CODE § 6B.18(1))
15. Government Deposits Commissioner’s Award and Takes Pocession of Property
After the commissioners’ award has been filed, the condemning authority may deposit the amount with the sheriff and take full possession of the property. The award must be paid in full before the government may take possession of the property. (IOWA CODE § 6B.25)
An appeal from the commissioners’ award is tried as an action by ordinary proceedings. In ordinary proceedings for a simple money judgment, the right to trial by jury is guaranteed. (IOWA CODE § 6B.21) Additionally, see IOWA R. CIV. P. 611.6; IOWA CONST. ART. I, § 9; Gardner v. Kerlin, 169 N.W. 177, 177 (Iowa 1917)
The eminent domain process in the state of Iowa 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 Iowa.
Iowa 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 B- to the state of Iowa.
House File 2351 passed in Iowa in 2006, which limited the use of eminent domain takings by local government authorities through clarification of the state’s interpretation of the term “blighted”. This bill set a state standard where 75 percent of the area needed to be blighted, or in slum conditions, in order for a municipality to condemn a property. Interestingly enough, the governor vetoed this bill the same year it was passed, however both the House and Senate overrode the governor’s veto.
Hiring an Eminent Domain Attorney in Iowa
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 Iowa 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 Iowa 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.
Are my Attorney’s Fees Recoverable in Eminent Domain in Iowa?
Also, Iowa has passed legislation that requires the government or condemning authority to pay a property owner’s attorney’s fees and costs in eminent domain cases when certain criteria are met. Iowa Code § 6B.33 states that attorney’s fees and costs, including the reasonable cost of one appraisal may be recovered in Iowa as determined by the commissioners if the award given is at least 110% of the final offer made by the condemning authority. The property owner must submit an application for fees and costs prior to adjournment of the final meeting held by the commission to determine compensation. The condemning authority shall pay all reasonable costs and incurred fees, unless on the trial date, a lesser amount of damages is awarded.
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. For a free case analysis, contact us one of our Iowa eminent domain attorney today at (866) 339-7242.
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.
Although this was a small step toward helping property owners, this bill is significant because it protects property owners against municipalities who want to declare entire areas blighted based on vague conditions or circumstances.
Questions about Iowa 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.