Practice Area: Land Condemnation and Eminent Domain

FAQ - Land Condemnation and Eminent Domain


Eminent Domain


Q: How Can My Property Be Taken?

A: Eminent domain is the government’s inherent right to take private property for a public use. However, when this property taking occurs, the government must pay just compensation. The government’s power of eminent domain is limited by the 5th Amendment of the U.S. Constitution, which states that private property cannot be taken for public use without payment of just compensation. The North Carolina Constitution has been interpreted by the court to provide similar protections to private property owners.Your property can only be officially taken by the government’s filing of a complaint or petition in the county in which the property is located. Property owners can defend themselves, or they can have an attorney represent them in this action.

Q: What Should I Do if I Lean My Property Will Be Taken or Affected By A Property Taking?

A: If it appears that your property will be taken or affected by a taking, then you need to take action:It is wise to seek the advice of an attorney experienced in property law and eminent domain issues.• Do not apply for building permits, zoning changes, variances, tax valuation reduction and the like without first speaking with an attorney.• You are not required to give the government any information about your property, including appraisals, without speaking with a lawyer.

• Use your best efforts to maintain the appearance and condition of your property.

Obtain from the government representative all information regarding the project and its affect upon your property: obtain a copy of the appraisal report used by the government, copies of public hearing maps, highway plans and cross sections.

Q: What Should I Do if The Government Provides a Monetary Offer?

A: Be careful. It is probably best to obtain this in written form and then tell the government representative that you will respond as soon as you are able to fully investigate the situation. It is important to understand the basis of the offer and the full impact of the taking on your remaining property before resolving your case.

Q: What Happens if There is a Dispute as to Just Compensation?

A: If you and the government are unable to agree on just compensation for the taking, then the government will file a lawsuit in the court in the county where the property is located. At this point, it is wise to hire a qualified eminent domain/land condemnation attorney who knows how to protect and advocate for your property rights.


Compensation


Q: What Should I Do if The Government Provides a Monetary Offer?

A: Be careful. It is probably best to obtain this in written form and then tell the government representative that you will respond as soon as you are able to fully investigate the situation. It is important to understand the basis of the offer and the full impact of the taking on your remaining property before resolving your case.

Q: What Happens if There is a Dispute as to Just Compensation?

A: If you and the government are unable to agree on just compensation for the taking, then the government will file a lawsuit in the court in the county where the property is located. At this point, it is wise to hire a qualified eminent domain/land condemnation attorney who knows how to protect and advocate for your property rights.



Lawsuits


Q: A Lawsuit Has Been Filed, now What?

A: After the lawsuit has been filed and served, the property owner has a set time frame for answering the lawsuit. The case then proceeds to determine the ultimate resolution of all property issues that arise due to the taking and the ultimate resolution of the amount of just compensation. The case may include the hiring of experts, exchange of relevant documents and information, court hearings, settlement conference, and a trial by 12 jurors to determine the issue of just compensation.

Q: Is There an Opportunity to Settle Before Trial?

A: Yes. Court rules require that the parties attend and participate in a settlement conference – called mediation. An independent mediator is selected who has no interest in the case or the outcome of the dispute but who will work with the parties to try and achieve an amicable resolution.



Legal Costs


Q: How is an Attorney for the Land Owner Paid in an Eminent Domain Case?

A: This is an issue entirely between the property owner and the attorney. In most cases, an attorney is usually paid on a contingency basis. Under this arrangement, an attorney’s fee is based upon an agreed upon percentage of monies obtained over and above the last written offer received by the government or the amount deposited by the government upon the filing of a lawsuit. Other types of arrangements may also be available, including an attorney working on an hourly basis at an agreed upon set hourly fee or an attorney working on a flat fee basis.

Q: What will it Cost of the Property Owner Hires an Attorney in a Land Condemnation Case?

A: As set forth above, if an attorney works on a contingency basis, then usually there are no upfront or on-going costs for legal fees. Legal fees are usually received when there is a monetary recovery over and above the last written offer by the government or the amount of monetary deposit by the government upon the filing of the lawsuit. There are other costs that may be associated with the case, including the hiring of appraisers, engineers, site planners, and the like needed for the effective presentation of the case. These costs vary with the complexities and uniqueness associated with each individual case. An experienced attorney in eminent domain/land condemnation should be able to estimate and control these costs.