Protecting Landowners in Government Takings
When your land may be taken for a public project, you may wonder: How do I protect myself? What can a Texas eminent domain lawyer do for me? Who is the best Texas eminent domain attorney for my particular case?
Let Austin, Texas eminent domain attorney David Todd show you how the condemnation process works and how to protect your rights and get maximum value for your property. Also contact us for a free, no-obligation review of your case.
What is "eminent domain"?
"Eminent Domain" is the inherent power of the government to take private property for public use. "Condemnation" is the legal process the government uses to take the property. Although the government and utilities in certain cases have this right, the U.S. and Texas constitutions guarantee that landowners must receive just compensation for their property. The key to protecting your right to compensation is preparation of your case to prove the maximum value for your property. It is vital that you contact a Texas eminent domain attorney in order to learn how to recover just compensation for your land.
What is “condemnation”?
Condemnation refers to the legal procedure that the government must follow when exercising its eminent domain authority to force the sale of a landowner’s private property.
How does the government start the process of taking land?
After preparing the necessary property description of the property, the government must check the property’s title history. Title insurance or independent research may be used to complete this step. When the government needs to buy property for a major project, it is usually necessary to hire a licensed appraiser.
What does the government do when it decides to take my land for a project?
The focus of the acquisition process is determining the property’s value and current owners. The government attempts to acquire property through negotiation with landowners. If these negotiations fail, because they cannot agree upon a price or because the landowner will not sell at any price, then if the project meets the legal burden of "public use", the government may condemn the property.
Is the government required to negotiate with me?
Yes. Under Texas law, the government must negotiate with landowners. The government must be able to demonstrate a good faith attempt to reach an agreement for the sale of the property. The government must investigate all aspects of the property's value and prepare worksheets and summary sheets that help to determine the property’s value.
What happens if the government and I cannot reach an agreement?
Frequently, the government is unable to agree with the property owner on a price for the property. If an agreement on price cannot be reached, the government must then file a petition for condemnation in court.
The government must make a “bona fide" (good faith) offer to the landowner. They must also send the landowner a copy of the Texas “Landowner's Bill of Rights”. The Landowner Bill of Rights may be found on the attorney general's website by clicking here.
What is the condemnation process?
Condemnation proceedings begin when the government files a condemnation petition in court. The petition must contain: a description of the property, a specific statement of the intended use of the property by the condemning entity, a list of the names of all owners of the property, a statement that the government and the landowner have failed to reach an agreement on price, a statement that the “Landowner’s Bill of Rights” has been provided to the property owners and a statement that a bona fide offer has been made.
Who are “special commissioners” and what do they do?
Once a condemnation petition has been filed, the judge of that court 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 commissioners in condemnation proceedings are a special tribunal. The commissioners conduct a hearing and then assess the damages ("just compensation") to be paid for the condemned property.
What is the procedure for the special commissioners hearing?
After being appointed, the commissioners must schedule a hearing for the parties. At this hearing, the special commissioners consider the evidence presented by each party. 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.
How do the special commissioners calculate damages?
In assessing damages, the special commissioners hear 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.
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.
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).
Any valuation must always consider the "highest and best use" of the property—both immediately or in the reasonable, foreseeable future.
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.
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.
What else must the government do during condemnation?
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 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.
The government must provide relocation advisory services for individuals, families, businesses, farming/ranching operations and nonprofit organizations that are compatible with federal guidelines.
How do you appeal the decision of the special commissioners?
Any party may appeal the Award of the Special Commissioners.
If no files an objection, the decision of the special commissioners becomes final and the court must adopt the commissioners’ award as a judgment of the court.
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.
Why should I hire a lawyer?
The government wants to build projects for the least 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 Texas 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.
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.
What does it cost to hire a Texas eminent domain attorney?
Most Texas 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 Texas eminent domain lawyer is confident in their ability to obtain results for you.
When should I hire a Texas eminent domain lawyer?
As soon as possible. 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.
How do I get started?
To receive a free review of your situation, learn how we can help protect your rights as a landowner and decide if we are the best Texas eminent domain lawyer for your case, please contact us now (512) 472-7799 or through our contact form.
Questions? Click this link to see more detailed answers to Frequently Asked Questions About Eminent Domain.
Want to know your rights as a property owner facing eminent domain? Click this link to review the Texas Landowner's Bill of Rights.
Click for more answers to frequently asked questions here.