October 11, 2016
By: J. Eric Rochford, Attorney
The idea that the federal government can seize your private property sounds unfair. However, the United States Constitution gives the government the right to do just that as long as it is in the interest of the public to do so. What rights do landowners have when the government invokes its right of eminent domain? This article will answer a few questions if you are faced with this situation.
Is it expensive to hire an eminent domain attorney?
It is not expensive to hire an eminent domain attorney. In fact, it may cost you more if you fail to hire an eminent domain attorney. Many attorneys who help landowners in eminent domain and condemnation proceedings do so on a contingency fee basis. This means that you only pay attorney fees if you are able to reach a settlement or verdict in your case above the amount that the government or taking agency initially offers you. When that happens, a portion of your award exceeding the amount of your initial offer pays the attorney for their work.
The government or taking agency will always be represented by an attorney. The government and its attorneys’ goal is to acquire your property or a portion thereof for as little money as possible. One benefit of hiring an eminent domain attorney to help you is that they are familiar with the process. These attorneys regularly handle condemnation takings and real estate litigation. They know the right questions to ask, how to protect your property rights and how to maximize your just compensation. Further, an eminent domain attorney won’t allow you be misled or intimidated by the government’s buying agent or attorney.
Can the government or taking agency enter onto my property before filing the condemnation complaint?
Employees or representatives of the State of Indiana, which usually involves the Department of Transportation (INDOT), are permitted to enter upon your property prior to making you an offer in order to perform survey and investigation activities. This is usually for the purpose of preparing engineering documents and an appraisal. Customarily, the government will notify you in writing that someone may be entering upon your property in order to perform certain survey or investigative activities. The government may not enter onto your property to begin construction activities though, unless you have expressly authorized them to do so.
Employees or representatives of a utility or pipeline company may only enter upon your property prior to the filing of the condemnation complaint, if: a) the utility or pipeline company notifies you by certified mail at least 14 days prior to entering upon your property for the proposed survey or investigation; or b) you authorize them to enter upon your property in writing.
Am I allowed to testify about the value of my property?
Landowners are entitled to testify at trial about the value of their property and what they believe to be total just compensation. Although a landowner may not otherwise qualify as an “expert” to give opinion testimony at trial, landowners are presumed to possess the knowledge and familiarity with their own property to testify to its value. It is important that landowners are adequately prepared and advised about the law prior to giving their opinions though. Often times landowners believe they should be compensated for something that the law doesn’t recognize as a compensable interest in an eminent domain case, such as lost business profits, or anything involving personal property; or they believe they should be compensated based upon an approach to fair market value that is not recognized in many circumstances, such as a replacement cost or substitution measure of damages.
When does the government actually take title to my property when it takes it under the threat of eminent domain?
Title to your property can transfer to the government or taking agency generally at three different times.
- Title will transfer if you accept the government’s initial offer and execute the deeds/instruments that it asks you to execute. Usually, the government will agree to pay you within 30 days and your matter will be concluded. The government can enter onto your property immediately and begin construction activities.
- Title can transfer if you settle the condemnation lawsuit. This can occur anytime during the pendency of the lawsuit, but most often occurs following mediation. Mediation is an informal settlement conference among the parties with a neutral party. Mediation most often takes place during the second, or damages, phase of the condemnation case.
- Title can transfer when the judge enters judgment on the amount of the jury verdict, if your case goes to trial.
There is an important distinction about title transferring and the government or taking agency being able to take and exercise possession of your property. The government can take possession of your property and begin construction activities within the area that it seeks to take in two instances. First, if you agree to allow the government to do so early on in the condemnation process. Second, if the government deposits the amount of the court-appointed appraisers’ award with the Clerk of the Court. Upon the deposit with the Clerk, the government or taking agency has the right to possess your property.
For more information about these questions or others regarding eminent domain takings, contact me. My practice is focused on eminent domain and condemnation law. I have handled hundreds of matters involving the taking of property by government and quasi-governmental entities like utility companies and can help explain your rights and options.