The following is a list of answers to the most frequently asked questions we receive from property owners. If you have a question that is not answered below, feel free to contact us, and we will be happy to answer your question.
- What is eminent domain?
The power of eminent domain, also known as the power of condemnation, is the power to take private property for a public use upon the payment of just compensation.
- Can I fight the taking of my property?
Yes, but it is easier to reduce the amount of property being taken than to completely defeat the take. First, the bad news- a condemnor may take private property as long as the taking is for a public use. The burden is on the condemnor to prove that the taking is for a public use, but the courts have long since decided that takings for a wide variety of projects such as road projects, gas, transmission, and water lines, new schools, and government buildings are for a public use. Unfortunately, there is no requirement that the public use be a good idea or an idea that a majority of people in your community supports. Under the law, a taking for a new road is considered equally legitimate whether the new road is a good idea or a bad idea.
Next, the good news- it is often possible to reduce the amount of your property being taken. Condemnors may not take more property than is necessary for the stated public use. Condemnors often try to take more property than is necessary in an effort to stockpile property for future use. This practice is especially common when condemnors take easements. Standard easement language usually allows the condemnor to return at a later date and expand its use of the easement without paying any additional compensation to the property owner. Thus, it is wise to consult an experienced eminent domain attorney before agreeing to terms with a condemnor to ensure that the condemnor is not taking more of your property than is allowed by law.
- Do I have to accept the amount of money the condemnor offers me?
No. Property owners are constitutionally entitled to just compensation. You may reject the condemnor’s offer if you believe it does not adequately compensate you for your property.
- What is just compensation and who decides how much just compensation I get?
Just compensation is defined as the value of the property taken and the damages to the remainder of the property, which is the difference between the value of the remainder before and after the take. Just compensation may also include lost business profits and lost access.
A property owner may choose between a judge, jury, and panel of commissioners to determine just compensation. Both the jury and panel of commissioners must be composed of property owners in the city or county where your property is located. If a jury is chosen, the jury is selected from a jury pool drawn at random by the court. If a panel of commissioners is chosen, the commissioners are selected from lists of commissioners submitted by both the condemnor and the property owner. Unlike many criminal and civil verdicts, an award of just compensation does not have to be unanimous. A majority of the jury or panel of commissioners may award just compensation.
- How do I prove how much just compensation I am owed?
The answer to this question varies considerably from property owner to property owner because every property and every taking are unique. However, in general, property owners will need to retain an appraiser to determine the amount of compensation they are owed by determining the value of the property taken and the damages to the remainder of the property. It is very important to retain an appraiser experienced in eminent domain appraisals as there are special rules and appraisal methodology that apply in eminent domain appraisals that do not apply in everyday commercial or bank appraisals.
Property owners may also need to retain supporting experts to support the appraiser’s valuation. A civil engineer may be needed to assess the property’s development potential. An environmental expert may be needed if the property has special environmental assets or if there are contamination issues. A traffic engineer may be necessary if access to the property is impacted or the property’s parking or internal circulation are affected. And an attorney is needed to organize the efforts of these experts, to handle the case’s legal issues, and to prove the amount of just compensation at trial if settlement cannot be reached.
- What if the taking displaces me from my home or business?
You are entitled to just compensation, just like any other property owner. In addition, because you are being forced to move, you are entitled to additional benefits under the Virginia Relocation Assistance Act. These benefits include moving expenses and help in finding a comparable replacement home or business.
- What should I do to prepare for a condemnation?
Act as if you were preparing to sell your property. A condemnation is a distressing experience. Nobody wants to have their property taken, and the natural reaction is to stop investing time, energy, and money in something that is being taken away from you. However, that is a mistake. A property owner should try to maintain, and if possible, increase the value of their property prior to condemnation as if they were voluntarily selling their property. That means maintaining the property’s appearance and keeping all permits and approvals up to date. In addition, ownership documents or leases may need to be modified to shore up your entitlement to just compensation, and it may be beneficial to apply for new permits, rezoning, plat approval, etc. that would increase the value of your property. However, no changes should be made to the property, nor should any applications be submitted without speaking to an eminent domain attorney who can advise you as to how those actions will affect your just compensation claim.
- Is there anything I should avoid doing when preparing for a condemnation?
There are a number of things you should avoid doing. Avoid doing anything that decreases the value of your property. Do not file tax appeals claiming your property should have been assessed at a lower value- they can be used against you. Also, avoid placing low values on the property on documents such as financial statements. Be careful in any discussions you have with the condemnor or the condemnor’s agents as condemnors often try to use property owner’s statements against them, both in negotiation and at trial. Do not give the condemnor or its agents any documents relating to the property such as leases, contracts, offers to purchase, offers to sale, or financial documents without speaking to an eminent domain attorney who can advice you how providing those documents will affect your just compensation claim.
- Can a condemnor take my property and begin constructing its project before we reach settlement or go to trial?
Sometimes. A condemnation is governed by “slow-take” or “quick-take” procedures depending on the nature of the project the property is being taken for. In quick-take proceedings, the condemnor may take your property before settlement or trial by filing a certificate of take with the circuit court and depositing its appraised amount of just compensation with the circuit court. The condemnor may then enter the property to begin constructing the project. The property owner may withdraw the funds that have been deposited into court. Withdrawing the funds does not waive your right to contest the amount of just compensation you are owed. In other words, you can withdraw the amount that the condemnor has deposited and still claim that you are owed more than that amount.
Under slow-take proceedings, the condemnor ordinarily cannot enter your property until after just compensation has been awarded at trial or until the case has settled. This can provide leverage to property owners in negotiations because the condemnor cannot begin its project until the property owner has received just compensation. Condemnors sometimes act as if they have quick-take power when they only have slow-take power. Thus, it is a good idea to speak with an eminent domain attorney to find out what method the condemnor taking your property must use.
- What can I do if a condemnor takes or damages my property without offering me any compensation?
You can file what is referred to as an inverse condemnation claim against the condemnor to obtain just compensation. Most of the time, a condemnor recognizes that it needs private property for a project, makes an offer to purchase the needed property, and institutes a conventional condemnation proceeding if necessary. However, sometimes a condemnor trespasses upon private property or interferes with access to property when conducting a project. Other times, property the condemnor owns fails or the condemnor operates its property in a manner that harms private property, such as when waterlines break or discharge water onto private property. Private property owners are constitutionally entitled to just compensation whether or not the condemnor recognizes that it has taken or damaged private property. You may file an inverse condemnation claim to enforce your constitutional right to just compensation when a condemnor injures your property without compensating you for that injury.