Austin Texas Family Law, Eminent Domain and Personal Injury Lawyer FAQ
Austin, Texas family law, eminent domain personal and injury lawyer frequently asked questions and answers
- Page 6
When should I hire a Texas eminent domain lawyer?
Now. Hiring an eminent domain lawyer early in the process will protect you from "selling yourself short" in terms of your property value. It will also help you avoid making mistakes early in the process that may damage your compensation claim in later settlement negotiations or at trial. Whether in pre-lawsuit negotiation or pursuing your rights in court, an eminent domain lawyer will advise you regarding the process and the best strategy to recover maximum compensation for your property.
What does it cost to hire a Texas eminent domain attorney?
Most eminent domain attorneys work on a "contingency fee" basis where they only get paid if they settle or win your case for more than the government's initial "bona fide offer". This means they get paid a percentage (typically one-third) of what they can recover for your over and above the government's first offer. A contingency fee means your lawyer is confident in their ability to obtain results for you.
Can I win my eminent domain case?
Litigation is a huge mess and "the government always wins" - right?
No. While eminent domain proceedings are court proceedings (at least if they continue past the special commissioners phase), they are somewhat different from typical court proceedings, and do not necessarily result in a trial. In eminent domain cases, the goal is simple: to acquire title to property and to pay "just compensation" to the owner. Unlike ordinary litigation, there are usually no claims of wrongdoing or fault, and, with the right counsel, the owner does not usually have to become extensively involved in the litigation. You should not be afraid of eminent domain litigation. The vast majority of these cases eventually settle, and this process is usually the way to obtain maximum compensation for your property. The reality is that the vast majority of eminent domain cases settle without going to a final trial. Those who believe the "government always wins" are usually the ones who give their property to the government for far too little compensation.
Why should I hire a Texas eminent domain lawyer?
The government wants to build projects for the lease amount of money possible. Their appraisers and attorneys know this and will fight to pay you as little as possible for your property. They also know that many landowners simply take the government's offer because they are afraid of what will happen to them if they do not accept the government's offer or they believe it will be too complicated to fight for full value for their land.
Sometimes a business or property owner might be able to negotiate a fair price without legal representation. However, in most cases owners will obtain a significantly better overall result when they are represented by competent, knowledgeable counsel (i.e. more money in their pocket, even after their lawyer is paid). Eminent domain is an unusual area of the law with its own peculiar rules regarding compensation. Most owners (and most attorneys) do not know the full extent of the compensation to which landowners are entitled.
For most people, their real estate or business is their single biggest asset, and you do not want to give it away to the government for less than full value. This is a situation in which it is crucial to be properly represented by a knowledgeable eminent domain attorney.
Although you may reach a settlement prior to the government filing a condemnation lawsuit, it may be necessary to allow condemnation to occur (i.e. the government to file a lawsuit) in order for the property owner to receive just compensation. An experienced eminent domain attorney will help you consider all elements of damages and prepare your case from day one to be ready if you eventually have to go to trial. Being prepared for trial also increases the chances of settling your case for more than the government's first offer without having to go to trial and possibly without even having to go to court.
How do you appeal the decision of the special commissioners?
Any party may appeal the Award of the Special Commissioners by filing an objection with the appropriate court. Texas Property Code, Section 21.018, states that a party in a condemnation proceeding may object to the findings of the special commissioners by filing a written statement detailing both specific objections and the ground for these objections. The statement must be filed with the court that has jurisdiction over the condemnation proceeding. This filing must occur on or before the first Monday following 20 days from the date that the commissioners’ findings were filed with the court. However, the amount of time allotted to file the objection is tolled (delayed) until the court clerk sends notice of the commissioners’ award by certified or registered U.S. mail—return receipt requested—to the parties involved in the proceedings or their attorneys of record at their addresses of record.
If no files an objection, the decision of the special commissioners becomes final and the court is without authority to try the case. The court must adopt the commissioners’ award as a judgment of the court. A party who files an objection to the special commissioners’ award must ensure that notice of the citation (the appeal) is issued to the opposing party. If the objecting party fails to secure service of citation to the other party within a reasonable time, the trial court must dismiss the objections for want of prosecution and must also reinstate the special commissioners’ award. However, some circumstances, such as filing one’s own objections, may submit a party to the jurisdiction of the court even if a party has not been formally served.
If objections to the commissioners’ award are filed in the proper way, the county court at law or district court at law will try the case “de novo.” A trial de novo is a judicial proceeding in which the entire case is reconsidered. Neither party is limited to the claims or evidence presented during the special commissioners hearing. This trial will be a judicial proceeding as normally conducted by the court. The same evidence discussed in question 12 above will be admissible at trial.
What else must the government do during the condemnation?
Obtaining and disclosing appraisal of land. It is necessary for the condemning entity to obtain an appraisal in order to make an offer of fair market value to the landowner. Appraisal reports must be disclosed to the landowner, and any appraisals the landowner may have obtained must likewise be disclosed to the condemning entity. The condemning entity does not have to disclose any property studies of the area that are not appraisals of the particular property.
Notice of Right of Repurchase. The condemning entity must notify the landowner in writing if the property is no longer necessary for the public use that originally served as the justification for condemnation within 10 years of the property's acquisition if: (1) the use is cancelled; or (2) no actual progress (as precisely defined) is made within those 10 years. At that time, the landowner has the right to repurchase the property at the price paid by the condemning entity during the eminent domain process.
Relocation. The government must provide relocation advisory services for individuals, families, businesses, farming/ranching operations and nonprofit organizations that are compatible with federal guidelines.
Who pays for the condemnation proceeding?
After determining damages (the appropriate compensation for the property), the special commissioners must then determine the costs of the condemnation proceeding.
Section 21.047(a) of the Texas Property Code states:
Special commissioners may adjudge the costs of an eminent domain proceeding against any party. If the commissioners award greater damages than the condemnor offered...the condemnor shall pay all costs. If the commissioners’ award...is less than or equal to the amount the condemnor offered before proceedings began, the property owner shall pay the costs.
Section 21.047(d) of the Property Code states:
If a court hearing a suit under this chapter determines that a condemnor did not make a bona fide offer to acquire the property from the property owner voluntarily as required by Section 21.0113, the court shall abate the suit, order the condemnor entity to make a bona fide offer, and order the condemnor to pay (1) all costs as provided by Subsection (a); and (2) any reasonable attorney’s fees and other professional fees incurred by the property owner that are directly related to the violation.
How do the special commissioners calculate damages?
In fairly and impartially assessing damages, the special commissioners are governed by Texas Property Code Sections 21.041 and 21.042.
Section 21.041 states that the commissioners shall admit evidence on the following topics:
- The value of the property being condemned;
- Any injury to the property owner;
- Any benefit to the property owner's remaining property; and
- The use of the property by the condemning entity seeking to acquire the property.
Section 21.042 sets the guidelines for the special commissioners to assess damages:
1. Special commissioners shall assess the damages according to the evidence presented.
If an entire tract of land is taken, the damage to the property owner is the fair market value of the property at the time of the special commissioners’ hearing.
2. If a portion of a tract of land is condemned, the commissioners shall determine the damage to the property owner after estimating the extent of the injury and benefit to the property owner. The special commissioners must also take into account the effect of the condemnation on the value of the property owner’s remaining property. (The damages will be the fair market value of the portion taken and the damages, if any, to the remainder property as a result of the taking).
3. When estimating injury or benefit, the special commissioners shall consider injury or benefit that is peculiar to the property owner and that relates to the property owner’s ownership, use or enjoyment of the particular parcel of real property—now or in the reasonable, foreseeable future. This includes any material impairment of direct access on or off the remaining property that affects the remaining property’s market value. The commissioners may not consider injury or benefit that the property owner is likely to experience in common with the general public. (This includes increased traffic difficulties getting to the property or loss of visibility from the road. It also includes difficulty traveling within the property due to grade changes caused by an embankment for an adjoining street).
4. If a portion of a tract or parcel of real property is condemned for use in conjunction with a highway project, the special commissioners shall consider the special and direct benefits that arise from the project that are peculiar to the property owner and that relate to the property owner’s use, ownership and enjoyment of a particular parcel or the remaining property.
Any valuation must always consider the "highest and best use" of the property—both immediately or in the reasonable, foreseeable future.
Additionally, evidence comparing the raw land of the tract taken with subdivided property elsewhere should not be introduced.
After assessing the damages and allocating the costs, special commissioners are required to make a written statement of their decision. The statement, known as the “Award of Special Commissioners”, should be executed and dated by the commissioners and filed with the court on the day of or the next working day after the decision is made. The award is usually prepared and filed by the government acting for the commissioners. The clerk of the court is then required to send notice of the decision to each party by certified or registered mail by the next working day after the award has been filed.
What is the procedure for the special commissioners hearing?
After being appointed, the commissioners must schedule a hearing for the parties. Written notice informing the parties of the time and place of the hearing must be given at least 20 days before the hearing.
Notice of the commissioners’ hearing may be served by anyone competent to testify (and therefore prove the notice was delivered). Notice is accomplished, usually by the government on behalf of the commissioners:
1. By delivering a copy of the notice to a party, the party’s agent or to the party’s attorney;
2. If the property belongs to a deceased’s estate, a minor or an otherwise legally disabled person and that person or estate has a legal representative, by delivering a copy to that representative; or
3. If the property belongs to a non-resident and such resident has not been personally served, the commissioners may use service by publication if the owner is unknown or if the owner of the property is avoiding service of process.
Unless the Property Code specifies otherwise, the Rules of Civil Procedure generally do not apply to service of notice for the commissioners’ hearing.
Once proper notice has been served on all potential parties, the special commissioners may convene a hearing and consider the evidence presented by each party. A landowner who makes an appearance before the special commission during the special commissioners’ hearing waives any ability to subsequently claim that service was defective.
The special commissioners’ hearing is an administrative proceeding, not a judicial proceeding. Special commissioners have no authority to rule on questions of law, such as whether the condemning entity has the right to condemn the property at all. As a result, the hearings are not required to follow strict rules of evidence and other procedures observed in a trial court. Special commissioners may compel the attendance of witnesses, necessitate the production of testimony, administer oaths and punish parties for contempt in the same manner as a county judge.
The duty of the special commissioners is to determine damages a landowner will suffer from the taking of the property. This duty involves a determination of the value of the land taken and the amount of consequential damages (damages to the remainder) suffered by the landowner. The commissioners’ authority over the condemnation proceedings ends once they file their decision with the appointing judge. The judge has no authority to interfere with the proceedings before a decision has been filed.
Who are “special commissioners” and what do they do?
Once a condemnation petition satisfies the requirements of Section 21.012 of the Property Code, the judge of the court in which the condemnation petition is filed must appoint three disinterested real property owners who reside in the county to serve as special commissioners.
The purpose of appointing special commissioners is to create an administrative proceeding. The judge acts purely as an administrative agent. The judge appoints commissioners and administers their oath of office. The Property Code requires the judge to give preference to persons agreed upon by the parties. The judge must provide each party a reasonable period to strike the name of one of the commissioners. If this occurs, the judge must appoint a replacement commissioner.
The commissioners in condemnation proceedings are a special tribunal. Once the commissioners are appointed, they must file an oath with the court stating they will fairly and impartially assess damages according to the law. After taking the oath, the special commissioners should schedule a hearing as soon as possible, but not sooner than twenty days after they were appointed. The commissioners are given powers similar to those conferred upon a court and are required to administer fair and equal justice between the landowner and condemning entity. The commissioners assess the damages ("just compensation") to be paid for the condemned property. The validity of the commissioners' proceedings depends upon their strict compliance with statutory requirements.