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Private Property Condemnation: Frequently Asked Questions

For landowners facing possible condemnation of their property, or eminent domain issues, the right course of action requires understanding the options available. Read further for a list of the most commonly asked questions of our eminent domain litigation lawyers in condemnation situations.

What is condemnation?

Condemnation is the acquisition or taking of private property for a public purpose. The right to condemn is sometimes referred to as the right or power of eminent domain.

Who can condemn my property?

Federal, state, and local governments have the right to condemn private property, and this right has been delegated to numerous governmental agencies. The government also has delegated the right or power of eminent domain to certain private entities, including public utilities and common carriers. An entity with the right to condemn is known as a “condemning authority.”

How much am I entitled to for the taking of my property?

A landowner is entitled to receive fair market value for the property taken. In cases where only a portion of your property is taken, you are also entitled to recover the decrease in market value to your remaining property resulting from the taking and the uses to which the taken property will be put.

What can I do before my property is condemned?

There are several actions a landowner can take before his or her property is condemned. One of the most important of these actions is to seek the advice of an attorney who has experience in handling condemnation cases. The actions taken before property is condemned may help or hurt the subsequent condemnation case and may not accurately reflect the true facts about the property and its highest and best use.

Do I have to accept the condemning authority’s offer?

No. The condemning authority’s offer often falls short of full compensation to the landowner. You are entitled to contest the condemning authority’s offer and to receive full compensation for the property taken and damages to any property that remains.

If I do not accept the condemning authority’s offer, how will my compensation be determined?

If the condemning authority cannot convince you to sell the property voluntarily, it will file a petition in the appropriate court to take your property. Your compensation will ultimately be determined according to the condemnation law and procedure applicable in that court. In many cases, the court empanels a jury and conducts a trial to determine the amount of compensation.

How will my property be appraised?

Where appropriate, appraisers generally use three approaches to estimate the market value of real estate. They are the comparable sales approach, the cost approach, and the income approach. Appraisers will use as many of the three approaches as they deem applicable. For example, an appraiser might use all three approaches when valuing an improved property, such as a shopping center, restaurant, or office building. Appraisers will not apply one or more of the three approaches if they determine that an approach is not applicable to the property being appraised. For example, since the cost approach considers the cost of constructing the improvements located on the property, the cost approach is generally not used to estimate the value of vacant or unimproved land. Similarly, since the income approach is based upon the amount of rent or income a landowner would expect to receive from the property, the income approach is generally not applicable in valuing owner-occupied commercial properties and residences.

Why are some appraisal estimates so different from others for the same property?

The appraisal of property is subjective, and an appraiser’s personal bias, factual assumptions, selection of market data, and legal instructions can all affect the final estimate of market value. To protect the legal privilege that may apply in favor of a landowner, it is important to seek your condemnation attorney’s advice before hiring an appraiser or having the property appraised.

CONDEMNATION & EMINENT DOMAIN SERVICES

For landowners facing condemnation or eminent domain issues, V&E provides every reasonable opportunity for a property owner to be justly compensated. Our representation includes a suite of services aimed at securing just compensation for the landowner, including:

Breadth of Resources

V&E is well-suited to handle eminent domain and land use matters of all sizes. With eight national offices, we are able to assist property owners facing condemnation and land use issues across a wide geographic area. We are able to draw on the experience and insight of the numerous other practice groups in the law firm (e.g., environmental, energy, business, corporate finance, and tax) almost instantaneously, to respond to our clients’ needs in their condemnation or inverse condemnation cases.

Pre-condemnation Planning

Eminent domain cases begin months, and sometimes years, before the actual “acquisition” of property from the property owner. Actions taken by the property owner prior to the actual “taking” or “damaging” of the property can potentially affect the final outcome of the case by altering the property value or compromising important rights. V&E is well versed in rapidly gathering relevant information, assessing potential cases, and providing advice on appropriate strategies to obtain just compensation for landowners.

Established Processes

Having handled hundreds of condemnation matters, our lawyers have substantial experience in presenting the property owners’ compensation issues in a concise and persuasive way, whether at the administrative, mediation, or trial stage of a condemnation, inverse condemnation, or regulatory takings case. In addition, we are adept at advising clients on the appropriate strategy for their case in order to obtain just compensation while minimizing cost and risk.

Trial Practice

We have extensive trial experience in both state and federal courts. When a condemnation case must be resolved by jury trial, the many years of experience we bring are critical to evaluating the case and recognizing the proper manner to proceed in order to obtain a fair and just compensation result.

Technical Support

Demonstrative exhibits play an important role in conveying a case to the jury, from the depiction of a whole property before the taking to the property remaining after the taking. We work closely with experts and other professionals to present fair and accurate information to the jury. That way, the jury gets a clear and concise understanding of the compensation issues, enabling it to reach a fair and just compensation result for our clients

Appellate Representation

Condemnation cases are sometimes appealed. Our eminent domain attorneys have extensive experience providing briefs and arguing these appeals in both federal and state courts, and also draw on the experience of the Firm’s noted Appellate Practice.

Inverse Condemnation/Regulatory Taking

We also regularly represent property owners in situations where governmental activities result in the “taking” or “damaging” of private property without a statutory condemnation proceeding being filed. Whether the government has physically encroached upon private property for a public project or applied a regulatory provision that substantially denies the beneficial use of the property, a “taking” may have occurred, triggering the government’s obligation to pay just compensation. Our experience includes trying such cases in state and federal courts.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.