October 1, 2011 | Share
11 Tips To Protect Landowners Facing Eminent Domain / Condemnation Lawsuits
1. A government entity seeking to acquire your land through its power of eminent domain must provide you with a copy of the Landowner Bill of Rights published by the State of Texas the first time the entity contacts you about acquiring your land. READ THIS DOCUMENT CAREFULLY AND SEEK THE ADVICE OF COUNSEL REGARDING YOUR RIGHTS AS A LANDOWNER.
2. THE APPAISAL IS KING! In the world of eminent domain, an appraisal for the fair market value of the land in question, the expert that performed the appraisal and the attorneys’ ability to understand and cross examine the experts on either side can affect the outcome a case. This, of course, holds true for both sides involved. An accurate appraisal performed by a non-biased appraiser is an invaluable asset!
3. THE GOVERNMENT CAN ONLY TAKE YOUR LAND FOR A PUBLIC USE. Although, the government or some other entity attempting to take your land may be powerful, anytime the government attempts to acquire land for any reason other than a legitimate public use, the landowner can stop the government from taking the land.
4. DO NOT BELIEVE THE GOVERNMENT’S VALUATION OF YOUR LAND IS ACCURATE. The Government must engage in “good faith” negotiations with the landowner. In other words, this means the entity seeking to acquire land cannot keep documents/appraisals, etc. from the landowner during negotiations. Further, the government cannot use the fear of legal action against a landowner or otherwise threaten a landowner. This, however, does not mean they cannot attempt to acquire the land for the lowest price possible.
5. GET YOUR OWN APPRAISER TO DETERMINE VALUE OF YOUR LAND. There are several methods by which land can be valued and many variables to be accounted for under each of those methods. Remember, the person who produced the government’s appraisal for your land was paid by the government! This “expert” is their hired gun. Many times potential variables exist that need to be accounted for when valuing a tract of land, such as potential future income streams, existence of oil, gas or other minerals, groundwater rights. These variables are often overlooked or ignored by the government and its expert.
6. APPRAISERS AND REAL ESTATE BROKERS ARE NOT CREATED EQUAL. While both may be useful when litigating an eminent domain case, a MAI Certified Appraiser is much more qualified than a real estate broker to assess the fair market value of land. Additionally, an attorney experienced in handling eminent domain matters should be able to locate a certified appraiser that has additional training and/or experience with eminent domain issues. However, full appraisals can be expensive in relation to the amount of land being taken. Therefore, in some instances, a real estate broker can be helpful with land comparisons to assist with negotiations as cost may dictate. Likewise, brokers with eminent domain experience are preferred.
7. DAMAGE TO THE REMAINDER. Many times the government will only take part of a tract from the landowner, leaving the person with a remainder that is smaller. If a landowner is being subjected to a “partial taking,” it is always necessary to have a reliable appraiser isolate and value any potential decrease in value to the remainder that may be caused by government’s taking. Anytime a government taking causes damage to the remainder of the property, the government must compensate the landowner accordingly.
8. POWER IN NUMBERS. Whether it is a road, pipeline, power line, new government building, in many instances, multiple landowners are affected by the same project undertaken by the government. Many times the individual landowner’s interests are the same or similar. If the landowners and their attorney(s) combine forces and work together to achieve the same goal, the cost of litigation could be lower and the end result could also be more beneficial to each individual landowner. At the very least, landowners and/or their attorneys should attempt to monitor the progress of the project and other landowners’ lawsuits.
9. JUST BECAUSE THE GOVERNMENT CAN TAKE YOUR LAND DOES NOT MEAN YOU HAVE TO ACCEPT WHAT THEY ARE OFFERING. The 5th Amendment of the United States Constitution and Article 1, Section 18 of the Texas Constitution prohibits a entity with the power of eminent domain from taking private property without just compensation. In other words, if they want to take the land, they have to pay you fair market value (which is based on the highest and best use of the land, including any damage to remaining land) at the time of the taking. Determining the highest and best use of a piece of property as it relates to fair market value can be surprisingly complex.
10. DON’T ASSUME YOUR PROPERTY VALUE IS TOO SMALL TO JUSTIFY SEEKING LEGAL REPRESENTATION. Attorneys who handle eminent domain cases understand the size/value of some tracts of land would not justify complex litigation over the value of the land. However, the government knows this as well which might not bode well for the landowner during negotiations. The simple presence of an attorney advocating for the landowner will help keep the government honest. Additionally, and experienced attorney can tailor his/her representation of the landowner to the landowner’s needs.
11. SEEK THE ADVICE OF A COMPETENT ATTORNEY BEFORE MAKING ANY CONTACT WITH THE GOVERNMENT. There are many ways to structure a legal contract. An attorney can represent landowner’s based on a contingent fee agreement, retainer agreement, flat fee, or create a combination in structures. Therefore, it is always worth taking the time to speak with an attorney about the specifics of your case. The issues associated with land valuation are not only complex, but some important issues are subtle and often overlooked. An experienced condemnation attorney can help isolate out the specific valuation issues associated with your property in order to help you get just compensation for your land.To schedule a FREE consultation, please call our law firm at 214.726.1450. We handle eminent domain / condemnation cases anywhere within the State of Texas.
Categories: Eminent Domain and Condemnation