Most property owners will never have to face issues with eminent domain, but for those that do, navigating the system can be incredibly challenging and stressful.
Eminent domain—where the government or government agents take private property for public use—puts property owners in a terrible position. Often, the government believes the amount they have offered is fair, but how have they determined what constitutes fair?
You don’t have to accept the first offer the government gives you, and under eminent domain law, you can fight for more compensation. At Cutter Law, we can help you.
Here are some frequently asked questions about eminent domain.
What is eminent domain?
Eminent domain is also known as condemnation. It allows the government or agents of the government to take private property for public use. The right to eminent domain is included in the US Constitution, with restrictions.
What are the eminent domain restrictions?
The government can only take private property for public use and the government must offer “just compensation” for condemnation. Just compensation usually reflects fair market value of the property, but that fair market value can vary depending on the highest and best use selected for the property.
The highest or best use of a property may not be the way in which the property is currently used. The government may try to argue a much lower or more restricted “highest and best use” of a property to pay less in compensation for the condemnation.
Who can use eminent domain to take my property?
Governments, including states, counties, and cities can take your property.
Additionally, other entities that are authorized to enact condemnation of property may be able to if doing so in the public’s interest. These other entities can include transportation authorities, utilities, gas companies, and railroads.
Just compensation refers to the standard by which the landowner must be compensated for property that is taken by eminent domain.
Under the constitution, there is not a precise standard for measuring “just compensation” and, as a result, the courts apply “fair market value” to determine how much a property owner should be paid for property taken under eminent domain.
Under the California Code of Civil Procedure (1263.320), the fair market value of the property is the highest price that a seller would agree to, if the seller were willing to sell but didn’t have an urgent necessity, and a buyer, being ready, willing, and able to buy, each having full knowledge of all the possible uses and purposes for the property.
Fair market value includes consideration of two issues:
- Whether the project has increased or decreased the value of the property and its surrounding neighborhood, and
- Whether the property is currently being used for its highest and best use, and whether the current use of the property is the result of the project.
What is inverse condemnation?
Inverse condemnation refers to situations in which the property owner sues the government to either abandon the taking or force them to pay just compensation and damages for possession of the property.
This is in contrast to direct condemnation, in which the government sues the owner to take the property.
What are eminent domain severance damages?
Severance damages are damages linked to the taking of your property that restrict your use of it or its overall value beyond the amount taken.
For example, the government may take a portion of land to build a highway. Severance damages may be required to compensate the landowner for damage done to the remaining property when the highway is constructed.
Similarly, taking a portion of land may then put the land in violation of zoning laws. The owner should be compensated for this, especially if it will affect their ability to sell the property in the future.
Do I have rights regarding eminent domain?
Absolutely. You have the right to just compensation for your property and you have the right not to have your property taken except in situations involving public necessity or public use.
If you do not believe you have been offered fair compensation for your property, you have the right to refuse the government’s offer and have your case heard in court.
You also have the right to question the government’s right to take your property or the right to question whether the project could be modified to reduce its impact on you.
Additionally, you may have objections to the Resolution of Necessity, which establishes the project’s necessity and public use.
In such cases, a lawyer can help you determine if your objections are valid and what steps to take in such situations.
Can I stop the government from taking my property?
You can only stop the government from taking your property if you can prove that the government is not taking your property for public necessity or public use.
Can I fight for compensation if my property is taken?
Yes. The government has a duty and responsibility to offer just compensation for your property. If you do not believe the government’s offer is fair, you can refuse it.
If you and the government cannot agree on fair compensation for your property, you will go to court to have your arguments heard.
Can the condemnor come onto my property before taking the property?
Yes. The condemnor can come onto your property to conduct land surveys and studies. The condemnor must either have the landowner’s permission or send a certified letter requesting permission at least 15 days before the first date of the inspection.
If the landowner does not give permission, the condemnor must then send a Notice of Intent to Enter at least 15 days before the inspection.
How can I prepare for a condemnation?
Keep your property clean and well maintained, as though you were preparing to sell it. Do not sign anything unless an attorney has reviewed it.
What is the process of condemnation?
Before the government makes an offer on your property, it must obtain an appraisal that sets out the fair market value for the property. That appraisal must be given to the landowner and the government must offer the full amount of the appraisal.
The government will also send a Resolution of Necessity, which establishes the necessity of the project and its public use.
If you and the government (or authorized entity) cannot reach an agreement, the entity can file a condemnation lawsuit against you and any other affected parties.
Who determines eminent domain just compensation?
Just compensation is determined by appraisers, who may also include civil engineers and other experts. Just because they provide a report setting out just compensation does not mean you are being offered a fair amount for your property.
Appraisers may improperly undervalue the land, make mistakes, miss important information, or offer a lower amount than you are entitled to.
If you and the government cannot agree on just compensation, you have the right to have your case heard by a jury in your city or county.
Do I have to accept the government’s first offer?
No. You have the right to refuse any offers the government makes and to demand just compensation for your property.
You also have the right to severance damages and, where necessary, relocation costs. The government may undervalue your property, so you may have to fight to receive the amount you are entitled to.
If you believe the amount the government offers is too low for your property, you have the right to have your case heard in court.
Why do I need a lawyer to represent me in a condemnation case?
You might assume the government will treat you fairly or give you a reasonable offer for your property or real estate.
The government does have a duty to provide fair compensation for condemnation but it may not know the highest and best use of your land, or it may overlook important information affecting the value of your property.
When you and the government cannot agree on a fair amount for your property, you have to prove that the amount you are requesting is fair. You may have to hire appraisers to value your property and experts to show how the condemnation restricts your use of the remaining property and decreases future property values.
You may also have to show how the eminent domain acquisition puts your property outside of zoning ordinances (such as lot coverage ratios). These issues are known as severance and the government may undervalue those as well.
Additionally, an experienced lawyer can help you determine if the entity has the right to take your property or if the project can be modified to limit its impact on you, can fight against any prejudgment possession of your property, and can represent you if your claim goes to a trial.
A lawyer knows how to build a solid claim that ensures you maximize the compensation you receive for condemnation. Experienced lawyers know the laws surrounding eminent domain and work with experts to ensure your claim is thorough.
Can they take part of my property instead of the entire lot?
Yes. In fact, the government is only allowed to take as much of your property as it needs for public necessity or public use. It is not allowed to take more than necessary.
That said, if the government takes a portion of your property but its actions affect your use of the whole property—or the property’s value—the government must compensate you accordingly.
What if there are many people facing the same issue?
In some scenarios, many people are affected by the same eminent domain situation. This can happen if the government takes property from multiple landowners for a highway or for power lines, for example.
In such cases, if multiple landowners feel they are being treated unfairly, it can help to join together to fight the government. You may be able to share the costs of hiring appraisers or experts to support your claim.
California Eminent Domain Attorneys
If you are in Northern California and are dealing with an eminent domain issue, you need an attorney who will not back down against the government. You need aggressive representation to ensure you receive the maximum compensation you are entitled to.
You need an attorney who has the skills and resources to determine the value of the property being taken and any compensation you deserve for the loss of use of that property and build a thorough, meticulous claim on your behalf.
At Cutter Law, we represent homeowners, property owners and business owners in their eminent domain disputes. We work on a contingency basis and will only charge you a portion of the added value we obtain for you over what the government initially offers. Or, if you prefer, we can charge hourly.
Our clients trust us for our personalized, compassionate and skilled representation. Throughout our history, we have obtained hundreds of millions of dollars for our clients. Let us help you with your eminent domain claim.