FAQ In Land Condemnation Cases

Where only a part of a tract of land is taken, the measure of damages is the difference between the market value of the entire tract immediately prior to the taking and the market value of the remainder immediately after the taking. In determining the value of the landowner’s remaining property after the taking, the jury may consider the benefits or increases in value that may arise from the project.

Under the law, the State or other government body may take private property for the “public good” where they determine that it is necessary to do so in order to provide safer and more modern highways, expand an airport, build schools, provide public housing, etc. When using the power of eminent domain, the goal is to take into account the public’s well being, feasible engineering, safety and economic standpoints, and the least amount of injury or inconvenience to the public. 

After a route has been approved and the design is complete, agents for the State contact all affected property owners. These agents will provide information to landowners about how the project will be constructed, and will also obtain information about your property.

If you will be required to move, a relocation agent will also contact you to discuss assistance and payment allowances.

The State or its agents will make you a written offer for your land, which will include the amount offered as just compensation, a description of the property to be taken, and an identification of all buildings and other improvements, which will be taken.

When a landowner turns down the final offer, the State or its agents are forced to file a lawsuit in order to obtain title to the property to be taken. This is known as “condemnation” or the “right of eminent domain.” The landowner then has a time limit by statute from the date the lawsuit is served to file an answer and request that a jury determine the amount of just compensation to be paid. It is our policy to file an answer as soon as reasonably possible after the suit is filed in order to move your case along more quickly.

Sometimes they will, sometimes they won’t. There does not seem to be any set pattern about their policy in this regard. However, usually there will be no further negotiation in cases where they genuinely feel that a jury will not award more than the amount of the initial offer.

The beginning date of construction generally dictates how quickly or slowly the entity will move in regard to your claim. Once the condemning authority has finalized the plans and let the construction contracts, they must either obtain title to your land by voluntary purchase, or they must file suit in order to have the court determine that the entity is authorized to take your land against your will. There is no set time for how long the process will take.

If you turn down the written offer the condemning authority makes for your property, they will be forced to file a lawsuit. At the time the lawsuit is filed, the condemning authority must pay into the Clerk of Court the amount of money which they offered you in writing for your land. Once that money has been paid into the Clerk’s office, the landowner has a right to request that it be released immediately. We file a motion to assist the landowner in the release of these funds. In the event there are no liens against the property, these funds would be released right away and would be yours to keep, regardless of the outcome of the trial.

Each case is different and there is no set formula for how much more a landowner will be able to get. Under the law in Arkansas, if a settlement cannot be reached, the property owner is entitled to damages for the loss of the market value of the property. A jury of twelve people from the county where the property is located decides the amount of the market value.

The only way to determine how much more you are likely to get is to obtain an appraisal from a certified real estate expert who would be qualified to testify on your behalf at trial. Once this information has been obtained, a realistic range of compensation can be determined.

A condemnation is considered an involuntary conversion under the Internal Revenue Code and is treated differently from other sales of property. You will have a period of time to reinvest the proceeds and defer your tax obligation until a later date. You should consult a tax professional for more specific information regarding your particular circumstances.

Ordinarily, in land condemnation cases, the primary expense is for expert witness fees. In order to present a case properly, a landowner needs to employ one or more expert real estate appraisers to testify as to the value of the property. Certified real estate appraisers normally charge by the hour for the time spent in conducting the appraisal, as well as for the time spent testifying in court. Our policy is to obtain an estimate from the appraiser in advance as to the anticipated expense. Depending upon the amount of land taken and the difficulty in obtaining information on comparable sales, each appraisal (it may be necessary to get more than one) may cost anywhere from $1,000.00 to several thousand dollars.

Other costs may include exhibits, subpoenas, and depositions. It is our policy to request client approval of any expenses in excess of $500.00. Normally, costs other than expert witness fees will not be more than a few hundred dollars at most.

Our attorney fees are contingent upon success in the case. Our fee is a portion of the amount recovered over and above the last written offer prior to retaining us or the first written offer if we are retained prior to an offer being made by the condemning authority. 

If you are left with a piece of property that has little or no value, the condemning authority will offer to acquire the uneconomic remnant along with the portion of the property they actually do need for the project. If you do not sell it to them, you are entitled to the market value for its loss.

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:

1. Does the offer reflect the true market value of the property being taken?
2. Does the offer also include the market value of improvements made to the property?
3. Does the offer compensate you for damages or losses that may impact the remaining property, which is your right?
4. Does your business qualify for damages, and are those damages included in the offer?
5. Are you being compensated for relocation expenses?
6. What are the hidden issues of access, drainage, infrastructure or engineering that may go along with the project, and are you being compensated accordingly?
7. 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 use a legal professional from the very beginning of the process.

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.

At Moffitt & Phillips, PLLC, we are dedicated to protecting your rights and obtaining the just compensation guaranteed to you by the law. On any case we have at a minimum two attorneys dedicated to protecting your rights and interests.