Indiana Eminent Domain Residential Property Lawyer - Cohen & Malad

Residential Landowner Eminent Domain

Indiana Eminent Domain Attorneys for Residential Landowners


When the government exercises its right of eminent domain and takes private land for public use, the impact is significant for residential landowners. After all, you aren’t given the opportunity to decline the taking of your property but that doesn’t mean you don’t have certain legal rights.

Having your property taken under the threat of eminent domain and the condemnation process can be very stressful for residential landowners. Residential landowners often believe that they can handle the situation on their own without the need for a lawyer, which is understandable. However, the government or taking agency’s attorneys are hired to pay you as little as possible as just compensation and they will do anything possible to reduce your recovery. Even if the government or taking agency agrees to pay you compensation in addition to its initial offer, you should be skeptical. Often times you could be leaving significantly more money on the table.

Partial or whole taking of property through eminent domain action

The government or other taking agency may take all or only a portion of your residential property. You are entitled to just compensation for the taking either way. The issues can be pointedly different depending on whether it is a total or a partial taking.

With a total taking (the government is taking your entire property), the problem centers around the value of the entire property on the date of taking. There are no damages because no real estate remains.  Residential landowners are entitled to relocation assistance and sometimes to a Housing Differential Payment. The Housing Differential Payment refers to the amount the government or taking agency agrees to pay you and the actual cost of a replacement dwelling. Relocation assistance and the Housing Differential Payment are confusing terms, and many lawyers who don’t regularly handle eminent domain matters fail to understand how these mechanisms work and are not as well equipped to help landowners.

A partial property taking may cause the remainder of your property to suffer residue or other damages. Partial takings can include something as simple as a strip off the front of your property for a road widening project; or they can be something more complicated, such as or a utility line easement running directly through your property or a roundabout being placed at the corner of your property causing serious damages and affecting your safety and accessibility to your residence.

Other factors to consider in eminent domain residential property taking

Residue damages could include a reduced value of your remaining land or a reduced value of your home or other structures located on your property. The category of other damages can include a wide variety of damages that may be suffered by virtue of the construction or the project. Appraisers hired by the government or taking agency will commonly underestimate or completely overlook residue and other damages to your property.

It is also important for some residential property owners to understand the meaning of “highest and best use”. Per the Dictionary of Real Estate Appraisal, the highest and best use of a property is “The reasonably probable and legal use of vacant land or an improved property, that is physically possible, appropriately supported, financially feasible, and that results in the highest value.” This effectively breaks down into four factors: 1) legally permissible; 2) physically possible; 3) financially feasible; and 4) maximally productive. Just because you may currently by using your property for residential purposes does not necessarily mean that its highest and best use is for residential use.

Under eminent domain, you are entitled to just compensation. However, it is important to know that you only have one bite at the apple. Once you settle with the government or taking agency, the transaction is complete. You will not be able to receive any additional compensation if some type of damage, issue or problem is later discovered. This is why it’s important for you to seek legal guidance or representation if you are faced with an eminent domain action to take your property.

Cohen & Malad, LLP attorneys have extensive experience handling eminent domain and condemnation matters and can help you. Contact us for a free case evaluation and to learn more about your legal rights and options if the government is taking your residential property.