FREQUENTLY ASKED QUESTIONS
Q: What is Eminent Domain/Condemnation?
A: Eminent Domain, also known as Condemnation or "Taking," is the legal tool used by a governmental authority to acquire private property for public use, such as road building. But government's power to take property is limited to precise conditions by the Constitution, by statutes and by many years of case law. That's where good legal representation becomes important.
Although this power is limited to governmental authorities, it is not unusual for a governmental body to work together with a private company to take property. This is what happens, for example, when a privately owned company and a governmental entity take land for building electrical transmission lines or fuel pipelines.
Even before a condemnation begins, a governmental entity will typically assemble its army of lawyers, engineers, real estate appraisers, planners, accountants and consultants. By the time you find out that your property has been targeted, months or years of preparation may have already concluded. Ackerman & Ackerman knows how to take on these teams to enforce your rights.
Q: How can I afford help?
A: In many cases, your legal fees and costs must be paid in part or in whole by the condemning authority as part of your compensation as the property owner. In addition, your expert witnesses, fees and court costs may also be paid.
Ackerman & Ackerman may successfully assist you in negotiating a settlement just because our presence sends a clear message. At the very least, we'll help you evaluate the initial offer made by the condemning authority and advise you accordingly.
Therefore, you have nothing to lose - and everything to gain - by selecting a qualified, experienced attorney in this specialized area of law.
Q: What is fair compensation for my property?
A: This is a question that varies in every case and that has been the subject of many precedent-setting cases. The answer depends on many variables: Will a government project leave your business or home intact, but with less land, or less access? Will the project result in a greater value for your land than it now holds? Can the project be modified to prevent negative impact to your property value or your business? Has every alternative been weighed? What is the true value of your property?
Condemning authorities would often have you accept their value without asking any of these questions. Armed with expert counsel, you will know the answer to each of these questions before proceeding.
Q: How do I know if an offer is too low?
A: The law is designed to respond to factual information, gathered by asking tough questions. Here are seven typical questions used to determine whether an offer complies with the "good faith" requirement of the law - questions a condemning authority might prefer to avoid:
Does the offer reflect the true market value of the property being taken?
Does the offer also include the market value of improvements made to the property?
Does the offer compensate you for damages or losses that may impact the remaining property, which is your right?
Does your business qualify for damages, and are those damages included in the offer?
Are you being compensated for relocation expenses?
What are the hidden issues of access, drainage, infrastructure or engineering that may go along with the project, and are you being compensated accordingly?
Will you be required to "cure" problems on your property as a result of a project, and if so, are you being compensated for those measures?
Please remember that anything you say or write to a condemning authority can be used against you later. That's why we recommend that you choose an expert from the very beginning of the project.
Q: Can we stop a taking pending the outcome of a trial?
A: Yes. We go to court for an "Order of Taking Hearing" where the court has the authority to stop your land from being taken if the court finds that any of the following three factors is missing:
The property is being taken for a legitimate public purpose such as road right-of-way.
The project can't go on without your property.
The deposited offer was made in good faith and was based on a valid appraisal.
After the hearing, if the court rules that each of these factors has been satisfied, then your property can be taken in return for the deposited funds while trial is pending. This sets the scene for a full trial.
Q. What leads up to a trial?
A: As you consider the steps in litigation, please remember, the expenses of the lawsuit are typically paid by the condemning authority, and going before a judge and jury is often the best way to receive full protection when the government wants to take your property.
The process began when the condemning authority filed its "complaint" (a lawsuit) to take your property, which is described in the complaint as a "parcel." You or your attorney are served with the complaint and given a specific number of days to respond.
Here are the steps (pleadings) taken in response to a complaint:
Answer: a pleading that notifies the court of your intent to seek full compensation, filed 20 to 30 days after the complaint is served.
Motion to Withdraw Deposit: The condemning authority must deposit the "good faith estimate" with the court before it can take your property. If you file this motion, you are then permitted to withdraw that deposit without forfeiting your right to claim additional compensation.
Discovery: Requests for all additional information and details about the project.
Preparation of our expert reports as needed, examples include: a Real Estate Appraisal, a Business Damage Report, an Engineering Report, and a Cure Cost Estimate.
After you have reviewed each of these draft reports, they are finalized and submitted to the condemning authority as a counteroffer to the initial deposit. This frequently results in a voluntary, negotiated settlement.
Q. How do negotiations work?
A: The condemning authority takes time to review your counteroffer. Depending on the jurisdiction, a mediation conference may be held in an attempt to reach voluntary settlement.
In many states mediation is ordered by the Court. This is usually overseen by a neutral mediator, often an attorney. The condemning authority will bring its team of lawyers, appraisers, engineers and experts to the hearing. The property owner is also present and has the right to bring his or her legal team to present their case. The mediator does not have the authority to force either side to accept an agreement. If mediation does not produce an agreement, the matter goes to trial.
Q. What happens in a trial?
A: An eminent domain trial usually lasts 2 to 5 days. It begins with each party to the action posing questions to prospective jurors and carefully selecting a jury.
Each side then presents its case. Our case could include expert witnesses and testimony prepared as part of our counteroffer, in addition to legal arguments crafted in support of the case. We are experts in presenting compelling evidence and law in support of our counteroffer and at trial. Through hundreds of trials - all in condemnation cases - we have developed strategies that best serve your interest.
After the case is presented and our closing arguments are heard, the case goes to the jury. Jurors are charged with determining the value of the land, while the judge reserves responsibility for making decisions relating to technical
aspects of the law. Once the jury determines the verdict, a final judgment is entered in the sum awarded by the jury.
The money which is disbursed to you is yours to be used in any way you choose. However, if you exercise your right to appeal, your award must remain on deposit with the court pending outcome of the appeal.