Land Condemnation and Eminent Domain
As the population continues to grow, the need for public spaces such as roadway and public parks also continues to grow. Under the Fifth Amendment to the United States and North Carolina Constitutions, state and local government, and in some instances public utilities, can plan public projects that require the taking of private property for “public use.” The government can designate an individual’s property for “public use,” and has the inherent authority of land condemnation on their side. However, the Constitution requires that the government pay the landowner “just compensation.” It is up to the landowner to get “just compensation” by proving the best and highest use of the land. Additionally, should the Government take a portion of your property;you may have the right to compensation for damage done to the value of your remaining land.
How the Process Works
Pre-Condemnation Planning:The government often designates land needed for public uses years in advance. There are often steps a landowner can take to ensure just compensation once their property has been identified, but they must act to ensure their highest and best use of the property is identify and they receive just compensation for that use.
Negotiations:Once your property has been designated, you will likely be contacted by a right-of-ways agent and/or governmental appraiser, who will make the offer to purchase your property based on the appraised “highest and best use” of the land according to the government. As the landowner, you are not required to accept the government’s offer, as this offer often does not reflect the fair market value at the highest and best use, but rather the market value at the current use. Hiring the right attorney to negotiate on your behalf can be critical to ensure that you are given the “just compensation” that you are entitled to under the United States Constitution.
Lawsuit:If you are unsuccessful in negotiating an amicable settlement, the state will file an action in the county the property is located. At this point, the State has taken the property but you can continue to argue for just compensation. The government will deposit the amount of the initial offer with the Clerk of Court at the time the suit is filed, and after filing the proper motion to protect your right to fight for additional compensation; you may withdraw the money from the Clerk and continue to fight for higher compensation. At this point, your main concern is to increase compensation, which would be accomplished by developing a comprehensive litigation plan and hiring the necessary experts experience to determine the highest and best use.
Mediation:After the lawsuit has progressed both parties will be required to participate in a mediated settlement conference, during which a neutral third party know as a mediator, will allow the parties an opportunity to present their case and try to facilitate a amicable result. If the parties can reach an agreement the case will be settled.
Trial: If unsuccessful at mediation the parties can continue to negotiate, however, the case proceeds to trial. The parties then present their case to a jury of twelve of their peers and the jury determines just compensation for the property.
Types of Takings
Complete Taking:The government acquires all the land in question through the eminent domain process. In instances where an individual is forced to move, relocation compensation may be available.
Partial Taking:If the government has identified and subjected a partial section of land as the target of a condemnation action, such as a strip of land to widen a road, the owner should be compensated for the land taken as well as the damage done to the remaining parcel.
Temporary taking: The government uses the individual’s land for the completion of a project, such as for storage of equipment and supplies needed for a construction project, and eventually returns the full use of the land to the owner. The owner retains title to the property but should be justly compensated for the loss of the use and enjoyment of the property while the government needed the property.
Easement and Rights of Way: There is the potential for an eminent domain action to arise from the need for a right of way or easement to be obtained. The individual maintains right to the use and enjoyment of the property is long as there is no inference with the easement or right of way.
Physical Inverse Condemnation:The government has taking some action, that though not directly associated with your property, has resulted in some damage to the property, such as changing the flow of drainage that results in the property’s use being diminished.
Regulatory Inverse Condemnation:The government regulates the use of the property to a point where there has been a diminished value of the property.