Nature of Proceeding
Summary of the General Nature of an Eminent Domain Proceeding
A. Appraisal, Offer and Negotiations
- The condemning agency ("condemnor") must have the property appraised before commencing negotiations. (Gov. C. Sec. 7267.1)
- Prior to initiating negotiations condemnor must make a written offer and provide its written summary of the basis for its offer. (Gov. C. Sec. 7267.2.) The offer shall include an offer to pay the reasonable costs, not to exceed $5,000, of an appraisal ordered by the owner of the property. The appraisal shall be conducted by an appraiser licensed by the Office of Real Estate Appraisers. (CCP Sec. 1263.025.)
- Condemnor must give 15 days notice of hearing to consider adoption of a Resolution of Necessity authorizing eminent domain. (CCP Sec. 1245.235.) If an owner objects to the right of the condemnor to take his property, he should make a timely request to appear and be heard at the hearing and present any written objections prior to the hearing.
- Condemnor must adopt Resolution of Necessity authorizing eminent domain with no less than a two-thirds vote unless a greater vote is required by statute, charter or ordinance. (CCP Sec. 1245.240.)
B. Complaint, Answer and Deposit
- The condemnation action is initiated by the filing of a complaint in eminent domain. (CCP Sec. 1250.310.) The condemnor should name as defendants in the complaint all "persons who appear of record or are known...to have a claim or interest in the property described in the complaint". (CCP Sec. 1250.220.) A defendant in a condemnation action is often referred to as a condemnee.
- Condemnees file their demurrers or answers, including any objections to the right of the condemnor to take the property and a statement of the nature and extent of the interests of the defendant condemnees in the property. Those pleadings are filed within 30 days of service of the Complaint. (CCP Sec. 1250.320 and 1250.350.)
- Anytime after filing its complaint, the condemnor may make a deposit of probable compensation based on its appraisal. (CCP Sec. 1255.010(a)) The condemnor may then obtain an order for possession of the property. (CCP Sec. 1255.410) This enables the condemnor to take possession of the property prior to resolving the issue of just compensation. If there are no conflicting claims among the condemnees, they may withdraw all or part of the deposit. (CCP Sec. 1255.210, et seq. ) However, upon receipt of money deposited, the withdrawing condemnee waives all claims (e.g., objections to the taking) except a claim for greater compensation. (CCP Sec. 1255.260)
- Parties in an eminent domain action typically retain consultants. The type of consultants retained will vary depending on the nature of the subject property and its highest and best use. Examples of some of the types of consultants that might be retained include the following: real estate appraiser, civil engineer, land use planner or cost estimator. A goodwill appraiser may be required if there is a claim by a condemnee for loss of goodwill of a business conducted on the subject property. Often consultants are subsequently listed as expert witnesses and testify at trial. (See below at D. 3.)
D. Discovery, Exchange and Trial
- Initial discovery is generally limited to matters other than the valuation information required in the exchange of statements of valuation data which is made 90 days before trial. Condemnees sometimes seek discovery of information about precondemnation activities of the condemnor which may have had any effect on the value of the property (CCP Sec. 1263.330.), condemnor’s precondemnation conduct and activities which may give rise to claims by the condemnees against the condemnor for precondemnation damages, the EIR of the condemnor, a description of the project for which the property is being taken, and the proposed construction and use of the public project in order to determine the nature and extent of severance damages to any remaining property. (CCP Sec. 1263.420.)
- From the information obtained through the above discovery, the appraisal data gathered by the appraisers and input from condemnees' other consultants, the condemnees' appraisers formulate their opinions. Those opinions include highest and best use, the fair market value of the property being acquired, severance damages to the remaining property and any possible benefits to the remaining property, which benefits are offset against severance damages. (CCP Sec. 1263.310, et seq . and 1263.410, et seq.) If there is a claim by a condemnee for loss of goodwill of a business conducted on the property, a goodwill appraiser undertakes an investigation and formulates opinions on the amount of that loss. (CCP Sec. 1263.510, et seq.)
- The date of the required exchange of valuation data and lists of expert witnesses is 90 days prior to commencement of trial, unless agreed otherwise. (CCP Sec.1258.220.)
- Following that exchange, depositions of those listed experts can be taken and they are usually required to produce all writings relating to their opinions.
- At least twenty days before trial, the condemnor must serve its "final offer" of compensation and the condemnee must serve his "final demand" for compensation. If the case proceeds through trial of the issue of compensation and the court finds the condemnor's final offer was unreasonable and the final demand of the condemnee was reasonable, the court must award litigation expenses to the condemnee. (CCP Sec. 1250.410.) Recoverable litigation expenses include reasonably and necessarily incurred attorney’s fees, appraisal fees and fees for other experts. (CCP Sec. 1250.410.)
- The court usually sets at least one mandatory settlement conference before trial. It is normally held 1 to 3 weeks before the assigned trial date.
- The parties are entitled to trial by jury of the issue of compensation. (Cal. Const. Art. I, Sec. 19.) Legal issues are determined by the court.
- An eminent domain case is usually set for trial within 12 to 18 months of the filing of the complaint.
The above information is intended to be only a very brief summary of the general nature of an eminent domain proceeding and some of the applicable law. The facts and applicable law will vary from case to case. A condemnee who is threatened by a proposed condemnation of property should contact his or her attorney for advice regarding the law and procedure which is applicable to that particular factual situation.