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North Carolina Eminent Domain Process

The majority of eminent domain cases in the state of North Carolina meet the requirements for public use and necessity.  Examples of cases that meet this criteria are new road construction projects, road widening projects, or any highway or street expansion project; the acquisition of property for a new government building or for power lines.

If the taking of your property meets the requirements for public use and necessity, then continue reading to learn more about the eminent domain process in North Carolina.  Please note that this flow chart contains information specific to North Carolina Department of Transportation (NC DOT) acquisitions, which result in the majority of eminent domain cases in the state.  Please note there are extended explanations for all numbered sections of the flow chart.  Please be aware that the flowchart is simply an overview of the process used by the NC DOT to acquire property and should not be used as a tool to take matters into your own hands.

NC-flowchart

Extended Flow Chart Information (click to open)

1. Government Announces Project and Affected Properties
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.
2. Property Owner Hires Attorney
It is highly recommended that a property owner hire an eminent domain attorney to help them through the process. Eminent domain attorneys typically work on a contingent fee basis, which means there will be no legal fees due unless the attorney recovers more than what was originally offered by the government. The attorney will review the appraisal and offer and determine the strengths and weaknesses of the case. Depending upon the complexity of the case and the amount of direct and indirect damages, it might be necessary to have an attorney proceed with your claim to help you recover additional just compensation.
3. Government Inspects and Values Property
Condemnor may enter the property, but not structures, to survey, appraise and inspect it if it provides the owner 30 days notice (N.C.G.S.A. § 40A-11).  This appraisal conducted will be the basis for the condemning authority’s determination of just compensation which is paid to the property owner at the time of the taking.
6. Select Appraiser to Determine True Property Value
In many eminent domain cases, a second appraisal must be done on the property in order to show the full complement of damages, including those missed by the condemning authority’s appraiser. This appraisal is submitted as evidence supporting the property owner’s claim for additional compensation.It is highly recommended to consult with an eminent domain attorney prior to obtaining a second appraisal. Any and all appraisals done on the property to determine the owner’s opinion of the value must be submitted to the condemning authority. If you hire an appraiser on your own who is not experienced in valuing property in eminent domain cases, you may end up with an appraisal that contains errors that will be used against you in court. Hiring a wrong appraiser can seriously jeopardize a good claim. 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 property in question and determine the damages to any remaining parcel.Visit our Eminent Domain page, Why Act Now, to read an example of how hiring the wrong appraiser can hurt your claim. Make sure you consult with an eminent domain attorney before hiring an appraiser on your own.
7. Property Owner Settles with Government
If the property owner is satisfied with the amount of just compensation as determined by the condemning authority, then they can choose not to answer the complaint for additional compensation. In 12 months, the judge will enter the final judgment of the amount deposited by the NC DOT at the time of filing the complaint and the owner’s case is done. (N.C.G.S.A. § 136-107) At this time, they property owner should have already applied to the court for disbursement of money deposited. (N.C.G.S.A. § 136-105)
8. Deed is Transferred
Unlike other states, property ownership is transferred to the NC DOT at the time the complaint and declaration of taking is filed with the court. (N.C.G.S.A. § 136-104)
9. Owner’s Case is Done
The owners case is done once 12 months passes and not complaint is answered for additional just compensation.
11. Government Initiates Eminent Domain Proceeding
Negotiations are not a prerequisite to condemnation proceedings in North Carolina (N.C.G.S.A. § 40A-4).  Therefore, when the North Carolina Department of Transportation (NC DODT) is ready to acquire a given parcel of property, they will simply initiate the eminent domain proceeding by filing a complaint and declaration of taking in the superior court of the county where the property is located.  The complaint and declaration of taking will contain information such as the description of the property taken, who owns or has interest in the property, and the amount of just compensation as determined by the NC DOT (N.C.G.S.A.  § 136-103).  At the time of filing, the NC DOT will also need to deposit the sum of money it determines to be just compensation.  The NC DOT may increase the amount of its deposit with the courts at any time while the proceeding is pending (N.C.G.S.A.  § 136-103(d))Once the complaint and declaration of taking are filed and the money deposited, the judge will enter orders that place the NC DOT is possession of the property.  At this time, the property is condemned and controlled by the NC DOT.  (N.C.G.S.A.  § 136-104)The property owner can apply to the court for disbursement of money deposited by the NC DOT at this time without jeopardizing a claim for additional just compensation.  Subject to any liens, judgments, past due taxes, ect, the judge will typically grant this request. (N.C.G.S.A.  § 136-105)
15. Request for the Appointment of Commissioners
The property owner or NC DOT can request the appointment of commissioners within 60 days after the property owner files their answer to the complaint.  The property owner may also request this in their answer.  Upon request, the clerk of court will appoint three disinterested property owners residing in the county to act as commissioners to determine the amount of just compensation owed to the property owner.  The commissioners will have the power to visit the property, hear testimony from witnesses, hold hearings and consider evidence before filing into court a report for their determination of damages.  (N.C.G.S.A.  § 136-109).If the request for commissioners was not made by either party after 60 days of the property owner filing an answer, then the case will proceed to a trial de novo in court.  (N.C.G.S.A.  § 136-109(a)).
17. Owner Appeals Commissioners Award
Either party can appeal the commissioner’s report within 30 days after the report is filed and demand a trial de novo by jury to determine damages and just compensation.  If both parties agree, the trial by jury can be waived and instead determined by a judge.  (N.C.G.S.A.  § 136-109(d))If after 30 days, neither party files an appeal, then the final judgment in the amount determined by the commissioners plus interest will be filed and the owner’s case is done. (N.C.G.S.A.  § 136-109(d))**If the judge is of the opinion, in his own discretion, determines that the award does not provide just compensation, he can put the case on the civil issue docket for determination of damages by a jury. (N.C.G.S.A.  § 136-109(d))
18. Jury Trial on Just Compensation
Either a judge or jury will determine damages and just compensation.  The commissioner’s report and the evidence submitted by the NC DOT at the time of filing the original declaration of taking and complaint cannot be used as evidence during the trial.  (N.C.G.S.A.  § 136-109(d))

If you have questions regarding the eminent domain process in North Carolina, contact us for more information. The eminent domain process in the state of North Carolina 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 North Carolina.

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