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Challenging Eminent Domain

An aggrieved party who objects to a government taking must have an opportunity to receive fair notice (a reasonable time to obtain legal advice and prepare a formal objection). Additionally, there must be opportunity for a fair hearing before the award (monetary compensation) becomes final. The hearing provides a forum to determine whether or not there had been an actual taking as defined by law; whether the taking was for a public use; and/or whether just compensation had been made.

If the government is unable to justify its taking and fails to offer just compensation to the property owner, the taking won't be allowed by law (as rooted in the Fifth Amendment's Takings Clause); but challenging eminent domain is no easy task. The following information will help you understand the process of challenging an eminent domain taking.

Notice of Eminent Domain

No matter how well the government is able to justify the taking of private property, it can't just take it unannounced. Prior to any governmental action to exercise its right of eminent domain, the government must negotiate in good faith with the landowner for an acceptable price for the land. Initially, most governments notify landowners of prospective action by serving a notice of intent. The contents generally describe the parameters of the property in question, the proposed use, and an offer (in dollars) of purchase.

Extensive mediation and offers/counteroffers usually precede court action. A formal condemnation action only follows if an agreement can't be reached.

Hearings and Determining the Necessity of a Taking

Not all condemnation proceedings are the same. State laws differ on the number of hearings and the procedural structure of each, depending on the type of property in question or the intended use. Generally, a landowner may contest both the proposed taking and the amount of compensation offered. Ultimately, if administrative appeals fail, the landowner may petition in court, typically claiming a violation of constitutional rights.

Both sides may offer witness testimony and other evidence in support of their positions. Both sides may call attention to the fair market value (by expert testimony) of similar properties for comparison. Following court decision, appeals may take years, but generally does not stay the taking; if a landowner ultimately prevails on appeal, only money damages are generally available.

Challenging Eminent Domain: Remedies for Takings

Initially, an objecting landowner may request either or both injunctive and monetary relief. However, if the government's action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if the objection was not well-grounded or appears to have been motivated by excessive financial interest.

In cases of excessive takings (in which the landowner or landowners claim the government is taking more than it needs) or partial takings (easements), adjudication includes a determination of the percentage interest in a property which is adversely affected, and monetary award is prorated accordingly. Likewise, if the complaint is for devalued property which isn't directly taken, but adversely affected because of governmental activity on nearby property, adjudication includes a determination as to whether other factors have devalued the property.

In these cases, courts will determine the monetary difference between the devalued property and its fair market value without the alleged adverse effect.

Compensation is required, effective from the date of the alleged taking. Payments not made at that time accrue interest, to which the landowner is entitled. Occasionally, subsequent actions or objections are filed years after the initial determination. This is especially true in the case of partial takings. Over time, a government entity may engage in additional activity that exceeds in scope of the initial taking. If this causes further decrease in residual use or enjoyment still vested in the original property owner, both injunctive and monetary relief may be available.

Are You Challenging Eminent Domain? A Real Estate Lawyer Can Help

Even if you have a very good reason for opposing a government agency's proposed taking of your property through eminent domain, making the case on your own may be extremely difficult. Don't fight an uphill battle; get professional help from an experienced, local eminent domain attorney today.

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