- I have learned that a public agency is considering acquiring my property, should I consult with an attorney now?
- How should I respond to the government's written offer to purchase my property?
- How should I respond to a notice of a hearing to consider adopting a Resolution of Necessity authorizing eminent domain to acquire my property?
- I have been served with a Complaint in eminent domain, what should I do?
- Can I withdraw the money the government has deposited for my property before the case is finally resolved?
- If I cannot stop the government from acquiring my property, what am I entitled to?
- What measure is used to determine compensation?
- What is fair market value?
- What is highest and best use?
- What is loss of goodwill?
- What is relocation assistance?
- What typically happens in an eminent domain case after an answer has been filed by the landowner or tenant to the government's complaint?
- Who decides what compensation I am entitled to in a condemnation action?
- What does a jury consider to decide the amount compensation to be awarded?
- How long does it usually take to resolve an eminent domain case?
- What expenses and fees is the condemnee responsible for?
I have learned that a public agency is considering acquiring my property, should I consult with an attorney now?
Yes. We believe that a landowner or tenant whose property may be acquired should consult with an experienced eminent domain attorney as soon as it learns its property is being considered for acquisition. At this meeting valuable information can be learned including: the condemnation process; how to position yourself in the event your property is acquired; and the best way to respond to upcoming inquiries from the condemning agency?
How should I respond to the government's written offer to purchase my property?
We recommend that a landowner or tenant should seek the assistance of an experienced eminent domain attorney before responding. There are traps for the unwary and inexperienced. A good intentioned response may end up not being helpful to your position.
The attorney will likely verify that the offer is adequate. The offer should be no less than the amount of the government's required appraisal and it should include a written summary of its basis. (See Nature of Proceeding; Appraisal, Offer and Negotiations, Para. A. 2.) Beyond this, the recommended response will depend on the facts.
How should I respond to a notice of a hearing to consider adopting a Resolution of Necessity authorizing eminent domain to acquire my property?
We recommend that a landowner or tenant should seek the assistance of an experienced eminent domain attorney before responding. At Turner Law, if we determine that there is not a legitimate "right to take" challenge, we often recommend to our clients not to respond to the notice or to attend the hearing. Of course, there are many exceptions to this practice. There are numerous situations, including but not limited to, protecting a right to take challenge, where it is very important to provide a timely response and to present any written objections prior to the hearing. (See Nature of Proceeding; Appraisal, Offer and Negotiations, Para. A. 3. and 4.)
I have been served with a complaint in eminent domain, what should I do?
A response to a complaint is required to be filed within 30 days from its service. A landowner or tenant's response is usually by way of an answer or a demurrer. We recommend that the response to the complaint be prepared by an experienced eminent domain attorney.
Can I withdraw the money the government has deposited for my property before the case is finally resolved?
If there are no conflicting claims among the condemnees (e.g., tenant or lender) the condemnee can usually withdraw all or part of the deposit. By doing this the condemnee waives all claims (e.g., objections to the taking) except a claim for greater compensation.
If I cannot stop the government from acquiring my property, what am I entitled to?
Compensation for the property taken, including precondemnation damages and severance damages, if any. A condemnee may also be entitled to relocation assistance. Additionally, a business owner may be entitled to loss of goodwill.
"Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." Cal Const art I, Section 19, in part.
What measure is used to determine compensation?
Fair market value of the property being taken. If only a portion of property is acquired, it also includes the damage (i.e., reduced fair market value) caused to the remaining property by the severance of the part taken or by construction and/or use of the project in the manner proposed. Severance damages are offset by benefits, if any.
What is fair market value?
"[T]he highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available." (CCP Sec. 1263.320(a))
To determine the fair market value the appraiser will have to first determine the highest and best use of the property.
What is highest and best use?
It is the most profitable use. It is "a factor to be considered to the extent that the prospect of that use affects the market value" and that use is "reasonably probable". (BAJI 11.74) Highest and best use may be a different use than the existing use of the property when acquired.
What is loss of goodwill?
Goodwill is defined as the "benefits that accrue to a business, as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage." (CCP Sec. 1263.510(b)) It is an intangible asset.
Compensable loss of goodwill is the loss "caused by the taking of the property or injury to the remainder" that cannot "reasonably be prevented". (CCP Secs. 1263.510(a))
What is relocation assistance?
Relocation assistance includes things such as moving expenses, losses of tangible personal property as a result of moving or discontinuing a business, expenses in searching for replacement business, expenses to reestablish a displaced business. It is required that the expenses are reasonable, there are also predetermined limits for some expense items. Generally, relocation assistance is available to persons and businesses (including farm operations) displaced as a result of a public agency's acquisition of real property for a public use. Relocation assistance is not recovered as part of a condemnation action. The claim is made outside of a condemnation proceeding.
What typically happens in an eminent domain case after an answer has been filed by the landowner or tenant to the government's complaint?
At Turner Law we first evaluate the case and make initial recommendations about the type of consultants that should be retained. This will include a real estate appraiser, it may also include consultants such as a civil engineer, land use planner and a goodwill appraiser. We often conduct discovery concerning things such as the highest and best use, precondemnation conduct by the acquiring agency, construction of the project and how it will impact the remaining property, if any. Typically the government's attorneys will conduct discovery and retain its own consultants.
Ninety days before the scheduled trial each side discloses the names of the consultants they intend to use at trial as experts and their opinions. Each side then takes the depositions of the others' experts.
At trial each side presents its case, the majority of which is most often testimony from each sides' experts relating to the fair market value of the property being acquired, including severance damages, precondemnation damages and loss of goodwill, if any. (See Nature of Proceeding, Discovery, Exchange and Trial, Para. D.)
Who decides what compensation I am entitled to in a condemnation action?
Assuming the case does not settle and both parties do not waive a jury, a jury will decide the issue of compensation (i.e., the amount of compensation that is just) and the court will decide all other issues.
What does a jury consider to decide the amount compensation to be awarded?
At trial, each side presents evidence in support of its position regarding compensation. The jury determines the amount of compensation to be awarded. The jury verdict can be no lower than the lowest opinion presented at trial and no higher than the highest opinion presented at trial. The opinions presented at trial provide a range for the jury's verdict or, if waived, the court's decision.
How long does it usually take to resolve an eminent domain case?
Most often an eminent domain trial is set for trial within 12 to 18 months following the filing of the complaint. Most often a case will either settle or resolved through a trial within this time. However, the trial may be continued or a party may appeal following a trial both of which can significantly delay resolution of a case.
What expenses and fees is the condemnee responsible for?
Unless a condemnee is awarded litigation expenses following a trial (See Nature of Proceeding, Discovery, Exchange and Trial, Para D.5.), it will be responsible for the majority of its expenses and fees. This includes, but is not limited to, attorneys' fees and experts' fees. The government is required to reimburse the condemnee for some of the cost it incurs such as filing and motion fees and reporters' fees for depositions.