Eminent Domain and Condemnation
Eminent domain is the government’s right to take private property for public uses, such as roads, highways, sewer lines, housing projects, parks, schools, and other public buildings. Land condemnation is the formal legal action the government uses to assert its right of eminent domain. Generally, all federal, state, and local governments have this right to take private property. Therefore, private land owners may see an action to condemn land taken against them from a local municipality or city, such as Raleigh, Cary, Apex, Holly Springs or Morrisville. Alternatively, a condemnation action could also be initiated by a North Carolina Department of Transportation or the United States government. Even some private entities, such as utility companies, can initiate land condemnation proceedings – and often do.
Limitations on Government Takings
There are limitations on the government’s right to take private land. The 5th Amendment of the U.S. Constitution limits the government’s power of eminent domain. The result is that all entities that possess the power of eminent domain are subject to both North Carolina and Federal laws that require the following:
- the taking must be for a public use; and
- the property owner must receive just compensation.
Just Compensation - Valuing of the Property
If the government condemns private property for a public use it is required to provide just compensation for the taking. Property will be valued differently based on many factors. An experienced attorney can help you by ensuring all relevant factors are correctly taken into consideration and that your property is fully valued. It is important that you do not rush into accepting a quick settlement without first having the offer carefully reviewed. It is critical to understand the basis of the offer and the full impact of the taking on your remaining property before settling your case.
Measuring Compensation: Full or Partial Taking
How property is valued depends on whether the government is taking your entire property or only a portion of your property. In North Carolina, if your entire property is being taken then the measure of compensation is the fair market value of the property on the date of the taking. Generally, this date is considered to be the date the land condemnation complaint is filed by the government or utility.
A partial taking occurs when only a portion of your property is taken. For a partial taking, compensation differs depending on the particular circumstances. What will be the impact of the partial taking on the remainder of your land? Some of the factors an experienced attorney will consider are the impact on access to the property and changes in the highest and best use of your land.
Measuring Value- the Appraisal
For both full and partial takings, an appraiser will value your property. During this process your property must be valued at its highest and best use or uses. This may not necessarily be the property’s present use. When valuing property for a land condemnation case, there are typically three approaches used by appraisers: the market value approach, the cost approach, and the income approach.
Since the values of the appraisals impact the amount of compensation you will receive from the government, it is in your best interest to consult an experienced and qualified attorney who understands each of the valuing approaches and who can help you assess the credibility of the appraisals you are given.
Have you received a notice from the State, a municipality, or a utility company informing you of their intention to take all or part of your property? Contact StephensonLaw to assess your options.
*This blog is for educational purposes only and is not intended to provide, nor should it be used for, legal advice. Nothing herein should be construed as providing legal advice. By using this blog, you the reader acknowledge that no attorney-client relationship is being or has been created with the Author or his law firm. Non-attorneys should not use this blog for legal advice and attorneys should not use this blog as a substitute for their own legal research.