What Rights Do Property Owners Have During Eminent Domain in North Carolina?
The government has the power to seize some or all of your property if it is necessary to advance a project for public use. This authority is derived from the Fifth Amendment of the U.S. Constitution, so it’s not new. The state is also authorized to seize property via eminent domain by state law and the North Carolina constitution. Even local governments wield this power.
As if that wasn’t bad enough, the government can legally empower other condemning authorities – like public utilities – to seize your land, too.
Are there limits to eminent domain authority?
There are some limits on the power of eminent domain and certain steps the government needs to complete before it can take possession of your property.
2) You must be paid “just compensation” in exchange for the property (or property rights) being taken.
3) You cannot be deprived of your right to “due process,” which means formal procedures must be followed and you must be given the chance to object to things, such as the amount of the government’s initial offer.
Limitations to the limitations
There are, however, important caveats to those three limitations. “Public use” has been interpreted incredibly broadly by the U.S. Supreme Court such that our North Carolina legislature chose to change our laws to be more stringent.
“Just compensation,” also known as “fair compensation,” is negotiable. Both government agencies and local public entities, like private buyers, generally seek the lowest price for your property. Offers from a condemning authority may be flawed or based on incomplete appraisals of your property.
And “due process” doesn’t mean government agencies or even private condemnors have to wait. Once a condemnation lawsuit is filed with the county where your property is, they technically own what they’ve taken even if you’re still negotiating the amount of their offer.
What kinds of takings are there in eminent domain?
Essentially, there are three ways your property can be taken.
1) Physical taking – when the government or other empowered authority takes some or all of your property
2) Regulatory taking – even when the government action does not physically encroach on your property, its actions may still limit or affect your use to the extent that it is effectively taken
3) Inverse condemnation – What happens if the government damages your property or its value without officially condemning it? This may be inverse condemnation. Examples include damage to your property caused by nearby projects, construction equipment, the act of construction, poorly maintained storm drainage pipes, and more. If you believe you’ve suffered inverse condemnation, contact an eminent domain lawyer right away.
What rights do property owners have under eminent domain laws?
No matter how large the project or how small your property is, you have rights as a landowner in North Carolina.
Whether it’s the North Carolina Department of Transportation widening a road or a local government agency buying land to build a park, eminent domain laws do not give the government carte blanche to take whatever it wants.
You have the following property rights in the eminent domain process:
You have the right to challenge the taking’s necessity
A condemning authority like the government cannot just take your property without reason. They must show that taking your property is necessary for a public use, which can be defined as anything meant to enhance the lives of the general public. While it’s very difficult to challenge an eminent domain taking and prove that proposed construction does not meet the definition of public use, you may be able to successfully challenge how much of your land is being taken.
Do they need as much of it as they’re taking? For example, your entire property cannot be seized if only a portion of it is necessary for a public project, such as a road widening or utility installation.
But here’s the reality. While a North Carolina eminent domain lawyer can help you challenge the taking itself or the scope of the taking, these challenges are rarely successful, and property owners are usually best served not pursuing one.
You can sometimes ask the government to alter their plans
While contesting the taking as a whole is likely not your best option, you may have better luck petitioning the government to make small changes to their plans during the early stages. Before finalizing a project, the government, especially the Department of Transportation, often engages the public on proposed routes and construction.
If your property is set to be impacted, an experienced eminent domain attorney may be able to convince the government to alter its plans in a way that reduces the impact on your property. And if you hire an attorney who works on a contingency fee basis, it doesn’t cost you any more to have an attorney help protect your interests as soon as possible.
You have the right to just compensation for your property
According to eminent domain law, you are entitled to just compensation for your property – often defined as fair market value. Whether you’re losing your entire property or just a portion, the condemning authority is required to justly compensate you for what it takes.
This is where many private property owners can make a costly mistake. Like a private buyer, the government generally wants to pay you the lowest price possible – not necessarily fair market value (and certainly not maximum market value). And you may not know that you can negotiate for more or how to do it.
An attorney experienced in eminent domain law can show you how to try to find the real value in your property, how to try to prove it, and how to try and ensure you aren’t leaving money on the table.
Don’t inadvertently forfeit your right to negotiation
There’s one thing a property owner can do that will forfeit some of their rights and end condemnation proceedings instantly in favor of the condemning authority: accepting the initial offer.
By refusing, you’re preserving your opportunity to negotiate for more. You can fight on your own, or a skilled North Carolina condemnation attorney can help increase your odds of getting more compensation.
How is the fair market value of your private property decided?
This is the most common question we answer for property owners. Determining fair market value is a multi-step process. Typically, the condemning authority will first have an appraisal performed to determine the value of the property they’re taking and will base their offer to you on that appraisal.
The offer will reflect just compensation but may not be everything you could be entitled to based on your property’s “highest and best use.”
For example, if you have a house on a farm, and the government entity wants part of the farm for a road, they may offer you compensation for agricultural land – which is typically lower in value.
But, if the highest and best use of the property is actually for commercial purposes, the value of the property could be much higher. That’s why it is important to have an experienced eminent domain lawyer fighting for the maximum value of your property. Get clarity at no cost with a free case evaluation.
Don’t just hire your own appraiser to try to get the government to increase its offer. An eminent domain appraisal may take into account things that a traditional appraisal simply doesn’t. An appraiser could even be required under North Carolina law to ignore some areas of potential compensation during their appraisal.
Getting the wrong kind of appraisal often does more harm than good.
Other considerations in just compensation: Damages to the remainder
Even if the government only takes a part of your property, you are still eligible for compensation. For the individual property owner, even losing a small piece of property can do massive damage to the value of what remains. In North Carolina, this is called damages to the remainder (sometimes referred to as severance damages in other states, though the terms are not interchangeable).
For example, if the government takes a small piece of land with a natural spring that provides water, the remaining property may be seriously harmed. A small taken piece may also make the remaining property “nonconforming” according to local ordinances.
An attorney can review the facts of your case to help you identify and fight for possible damages to the remainder.
Easements and determining a just compensation award
What if the government entity takes property rights but not the property itself? That’s what happens with an easement. Easements are a specific type of property condemnation where you retain ownership but not the freedom to use the property entirely as you please.
Easements can be very tricky and are often greater in scope than the property owner realizes. For example, an easement can prevent a business’ customers from using its parking lot, which may significantly harm the value of the property as a whole.
Meet Ferondo: We helped Ferondo fight for maximum compensation when the DOT wanted a “minor” utility easement on his commercial property.
Before signing any easement agreement, consult an experienced eminent domain lawyer (no matter how much the government tells you the easement won’t affect you). Your attorney can help fight for more compensation or try to negotiate stricter limits for the easement holder.
Just compensation for your business in the condemnation process
The price the condemning authority offers you for your property may not be what you deserve and may not factor in variables such as relocation expenses or business losses. Remember: fair value is often negotiable.
There are certain arguments that may seem feasible or even strong to a property owner, but might actually damage the quest for additional payment. For example, loss of business income is not compensable in North Carolina.
Even business owners or attorneys who are veteran negotiators – but not experienced in eminent domain law – should consult an experienced eminent domain attorney before agreeing to anything.
Consult with an attorney to help protect your rights
Our skilled condemnation attorneys can help you determine what just compensation for your land really is. Several of our attorneys formerly worked on behalf of the NCDOT, so we know the process, the people, and the pitfalls property owners face.
We have relationships with experts throughout the state who work in and understand eminent domain and the nuances involved, including land planners, civil engineers, real-estate agents, surveyors, environmental scientists, and more. Our resources and relationships can help us build your case for maximum compensation.
Since we’ve been in business, we’ve helped our clients get more than 3x their initial offer, on average.1
With our contingency fee arrangement, we’re only paid if we are able to get you additional compensation above the initial offer, and our fee only comes from that increase. If we don’t get you additional compensation on top of your initial offer, you don’t pay us a fee – and our results for clients speak for themselves.1
There are only a handful of attorneys in NC who practice eminent domain exclusively, and even fewer with NCDOT experience. We have several. That’s why its worth getting in touch with us for a free case evaluation.
Here’s how it works:
1) Tell us about your situation.
2) We research your property as needed, using DOT maps, our own technology, and experience to see the exact effects.
3) We let you know what we think a fair offer would be. This evaluation is free, and there’s no
pressure or obligation to hire us after.
But please don’t wait to act. Waiting can hurt your case, and the cost is the same: free.