Williams and Walsh - Eminent Domain

Frequently Asked Questions

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Q: How does the State acquire my property?

A: Eminent domain, also known as condemnation, is simply the legal process established to assist governments in gaining ownership of private property for a public use. When the government initiates the acquisition process, it will attempt to negotiate the purchase price for your property just like any buyer might. If you and the government do not agree on a price, the government can proceed with eminent domain. Eminent domain formally beings when the government files a lawsuit known as a condemnation action. These lawsuits do not affect your credit rating or allege you did anything improperly or wrong.

Q: What criteria are important for selecting an appraiser for an eminent domain case?

A: An eminent domain appraiser should meet the following standards: a) Understanding of eminent domain valuation rules; b) Experience with the property type being acquired; c) Ability to write a comprehensive and thoroughly reasoned appraisal report; and, d) Ability and experience as a witness in court.

Q: Can I stop the government from taking my property by the use of its eminent domain powers?

A: A landowner can only challenge and potentially stop the eminent domain process if the proposed taking is found to not meet the requirements for public purpose (LINK TO GLOSSARY PAGE) or public necessity. If these requirements are met, the government is legally permitted to take your property, but the government does not dictate the final price it has to pay, either.

Q: The government is acquiring some of my parking spaces. Should the government pay me more than just the price of the land under the parking area being taken?

A: Usually, yes. For many properties the existence of parking is critical for the ability to use the property as intended. When parking is lost due to eminent domain, the remaining property may have great difficulty supporting the remaining businesses. This can decrease the value of the remainder of the property beyond the loss of value of the land under the parking area. This is an example of severance damages that the government frequently chooses to ignore or dramatically understate in eminent domain cases in our opinion based upon our experience.

Q: When the government talks to me about acquiring my property, it talks about condemning my property if I don’t voluntarily sell my property to them. What penalties are assessed against me if I force the government to condemn my property rather than voluntarily selling it to them?

A: None. By forcing condemnation, the property owner is simply exercising all the constitutional and statutory rights that the law allows. It is the only way for the owner to receive the full value for his/her property if the government refuses to voluntarily pay that amount.

Q: If I want an attorney in an eminent domain matter, what criteria should I consider in selecting an attorney?

A: Important considerations when hiring an attorney for an eminent domain matter are: a) Handles eminent domain cases on a regular basis rather than occasionally; b) Knows how to evaluate appraisers and appraisal reports; and, c) Will not hesitate to take a case to trial and knows how to develop a trial strategy.

Q: Since the government is required to pay me the fair market value for my property ie. just compensation under the eminent domain rules, shouldn’t I just accept the offer given to me?

A: No. The fair market value for a parcel of property may vary dramatically depending upon the highest and best use that is selected for the property as well as many other factors. The government will frequently, if not usually, choose a lesser highest and best use for a property it seeks to acquire through eminent domain, and neglect to take other damages into consideration. This justifies the government offering to pay a low “fair” market value for land it seeks to acquire. Property owners should insure the correct highest and best use is applied to their property. This may often be different from the actual use employed by the current owner.

Q: Should I receive extra compensation if the government’s eminent domain acquisition causes my remaining property to become nonconforming with zoning ordinances, e.g. set back requirements, lot coverage ratios, parking requirements, etc.?

A: Absolutely. These circumstances are examples of severance damages that take into consideration
the loss of value to the remainder of a parcel of property that is above and beyond the fair market value of the land and structures actually taken by the government. Owners should be aware that when the government recognizes some items as severance damages in its appraisal, it will frequently understate the level of monetary severance damages.

Q: Will changes in access to my property result in extra compensation to me under the eminent domain rules?

A: Yes it can. Access to property is an integral part of the rights of property ownership. When access is adversely changed in a significant way or lost because of eminent domain, the owner’s ability to use the property is restricted. This restriction requires payment from the government in many situations.

Q: What changes to my access will result in compensation from the government under the eminent domain rules?

A: There are generally two access changes caused by eminent domain that require compensation in South Carolina: a) The taking results in total loss of access; or, b) Access after the taking is limited or restricted to certain uses. Beware that the government may, in rare occurrences, acknowledge access changes yet understate the required compensation.

Q: Can I be compensated if the government’s eminent domain acquisition disadvantageously effects my business operation?

A: If the disadvantage to an owner’s business also affects the value of the real estate, compensation must be paid. Otherwise, if the damages are to the business only, compensation for loss of business is not awarded. There are exceptions, though, but they must be analyzed on a case-by-case basis. If a business is forced to move because of an acquisition, the business is always entitled to relocation benefits.

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Eminent Domain Areas of Practice