Eminent Domain Process Explained
Eminent domain is the power which the government or authorized entity uses to take your private property. It’s also known as “condemnation” or “land condemnation.” The eminent domain power in America comes from the Fifth Amendment of the US Constitution, and the North Carolina Constitution also permits it through NC General Statutes 40A & 136.
You can divide the process of eminent domain into two elements: taking and compensation.
Eminent Domain Process: Taking
The government does not take – or authorize the taking of – your property on a whim. Before you’re ever likely aware that your property is targeted, there are many steps that must be taken before the government can take it.
Who Has the Power to Take My Property in North Carolina?
Before anything else can happen, your property cannot be taken without authority. The government, as we said above, has the power to take your property.
For example, the government may decide that the road by your house needs to be wider, a highway connector needs to be built through your land, a new library must be erected, or an easement is needed for drainage. In all of these cases, the government is the “condemning authority,” and in North Carolina, the majority of eminent domain takings are by the Department of Transportation (NCDOT).
The government can also empower other entities to take your property, like utilities and communications companies.
For example, if your energy or communications provider needs to put up poles or bury wires or pipes, they may invoke the power of eminent domain. Either way, the process they must follow is very similar.
How Can the Government Take My Property?
There are two requirements that must be satisfied for the government to take your property:
- Public Use Test: The condemned property can only be taken if the public has a right to the use of the property once it is taken. Note that this does not mean “all” of the public, nor does it mean the public must directly use the property in question. The courts have generally interpreted a public benefit arising from the taking as implying a public use.
- Just Compensation: The government must pay fair market value for the property it is taking, including any impact to the value of your remaining property.
The ‘public use’ requirement is somewhat vague, and continues to be challenged in court. For example, in a case from back in the 1890s, the government denied a railroad company’s public use claim to land that was designated a historic battlefield. In the 1980s, the City of Oakland, CA was defeated when it tried to condemn the Oakland Raiders football team.
What Are the Steps the Government takes to Condemn My Property?
Once they have targeted your property, the condemning authority will do a couple of things.
- Determine the value of your property
- Make a monetary offer for voluntary transfer
- If you can’t settle with negotiations the government will provide you with a notice of taking
- The government will file its condemnation lawsuit in court, take your property, and deposit their estimate of just compensation
Payment of ‘just compensation’ for your property involves many different moving parts. Usually, the condemning authority wants to take as little as possible because they want to pay as little as possible.
Once the plans are completed the government stakes your property and sends out an appraiser to calculate damages. The appraisal is provided to the right of way agent for them to negotiate the claim.
It is generally not a good idea to accept the government’s first offer, because if you take the money offered, they take your property, and the eminent domain process ends.
If you refuse the offer, the process continues.
Under North Carolina law, the condemning authority will file its lawsuit stating the public use for which your property is being acquired, and including its deposit of just compensation for the taking. Once these steps are completed, your claim is now in the condemnation phase.
Does the Government Sue Me in Eminent Domain?
Technically, yes. This sounds scary, but it’s simply a legal formality in the process of eminent domain. If you do not agree with the condemning authority’s offer, they file their complaint (technically a lawsuit) with the clerk of court in the county where the property is located. They also serve you notice, and deposit the funds from their offer with the clerk. Two things that are important to know here:
- The money deposited with the clerk is yours even if you contest the amount and want more compensation. This is the minimum amount you’ll receive from the government or condemning authority for your property. Once the funds are with the clerk of court, you may withdraw them without waiving your claim to negotiate for more.
- Once these steps are completed, the condemning authority legally owns your property.
Eminent Domain Process: Compensation
This second part of the eminent domain process is all about you getting the fairest possible compensation for your property. As is often the case, this also involves rules, deadlines, and a few moving parts. You have the opportunity to try to increase the offer, but there are many ways you can damage that opportunity (or lose it altogether).
How Long Do I Have to Fight My Eminent Domain Case?
You usually have one year from the date you received notice of the condemnation lawsuit, but you may have only 120 days in some cases. If you do not respond within the time allowed in your case, you waive your right to argue for more compensation.
Note that you must file an official “Answer” with the court which states your disagreement with the offer amount, and request a jury trial.
Also remember that, while all of this is happening, the condemning authority officially owns the property they took and can begin working on it!
Will I Succeed Fighting the Taking of My Property?
Usually, no. You have the right to challenge the taking, and that’s usually a challenge against the public use or public benefit tests. However, these cases rarely succeed. Your best bet is likely to seek maximum compensation for the taking.
How Do I Fight for More Compensation?
You have to gather evidence and show why your property is worth more, or damaged more, than is reflected in the offer you received from the taking authority. The condemning authority will have appraisers and lawyers working hard on their side to try to get your property for the lowest price – we know because three of our attorneys once worked for the NCDOT.
Many of the steps you can take on your own aren’t as helpful as you think, and can even harm your case. This portion of the process of eminent domain is where many property owners ultimately fail.
A qualified eminent domain lawyer can fight to try to get you fair compensation, and can try to make sure that the condemning authority is not abusing eminent domain statutes and that your land or home isn’t being taken for questionable reasons. We know the process, the methods, and the decision makers involved.
Find Out How We May Be Able to Help You!
If you have been notified that the government wants to take your property, contact the NC Eminent Domain Law Firm to find out if one of our qualified North Carolina eminent domain lawyers may be able to help you.
Call 1-877-393-4990 for a free evaluation of your case. Our eminent domain lawyers work on a contingency fee basis, which means that if we don’t recover any additional compensation for your property above what the government has offered you, we don’t collect an attorney’s fee. On average, our firm has increased our clients’ original offer by 202%.*
*Each case is different and must be evaluated separately. Prior results do not guarantee a similar outcome. Average based on each case’s increase as of 12/31/20.