Eminent Domain / Condemnation
The fact that you are visiting this page likely means the local, state, or federal government or an entity therein such as a public utility company or SCDOT, for example, is contemplating the acquisition or has begun acquiring your property pursuant to the South Carolina Eminent Domain Procedure Act under South Carolina Code Sections 28-2-10 et al. As the landowner, you will be required to make important decisions about how to proceed in the condemnation process. Such decisions will affect how well your rights are protected. Knowledge is power. Make sure you become informed and seek assistance to ensure you obtain the compensation you are entitled to under the law.
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. The local, state and federal government has the inherent power to take your private property for public use. However, this inherent power is restrained by the Fifth Amendment to the United States Constitution as well as by Article 1, Section 13 of the South Carolina Constitution as follows:
The Fifth Amendment to the United States Constitution applicable to the States through the Fourteenth Amendment provides in pertinent part as follows: No person shall be . . . deprived of . . . property without due process of law; nor shall private property be taken for a public use without just compensation.
Article I, Section 13 of the South Carolina Constitution provides in pertinent part as follows:
Except as otherwise provided in this Constitution, private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made for the property. Private property must not be condemned by eminent domain for any purpose or benefit including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.
The federal and state constitutional limitations require both (1) the taking of private property for a public purpose or public necessity and, if so, (2) just compensation. 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 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.
The government must pay just compensation or the fair market value. 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 wrong or improperly.
Just compensation often involves a wide range of issues which government appraisers typically do not consider such as the highest and best use of the property, damages to the remainder or special damages to the property as a result of the take. When the government makes an offer to you, it will tell you that it represents fair market value. It may even show you an appraisal. But be aware, appraisals can vary, and the government’s may be a low one. If you reject the government’s offer, it still has to pay you that money, and this does not jeopardize your right to seek and obtain more money in the condemnation action.
Keep in mind “a penny saved is a penny earned.” The government is like any buyer, it will want to buy your property as cheaply as it can. . If you’re instincts tell you that your offer is too low, it probably is. DO NOT BE PRESSURED TO TAKE A LESSER AMOUNT BY THE THREAT OF EMINENT DOMAIN. IT’S YOUR PROPERTY. YOU ARE ENTITLED TO JUST COMPENSATION. DO NOT ACCEPT LESS THAN YOU ARE ENTITLED TO!
At Williams & Walsh, we have extensive experience preparing and challenging condemnation actions and counseling land owners targeted for pubic acquisitions. Our team of attorneys and experts has represented state agencies, as well as landowners and lessees, and are familiar with analyzing appraisals, acquisition procedures, and preparing and litigating condemnation cases, trial and appeals.
Our legal team possesses over 30 years of combined experience in condemnation matters and includes members who previously worked for the South Carolina Department of Transportation and other condemning authorities. We are experienced in handling issues involving access to property, drainage, wetlands, aesthetics, cures and costs-to-cure, highest and best use, and fair market value. We have handled such condemnation issues involving residential, commercial, industrial, and rural properties, as well as special use properties such as power plants, manufacturing facilities, churches, mixed-use developments, service stations, and golf courses.
Williams & Walsh is prepared to effectively counsel on, and vigorously challenge, issues such as pre-condemnation entry to property, land use and value appraisals, and pre-condemnation and condemnation mediations and settlements. We know how to negotiate and to litigate in working towards getting the best compensation possible provided by law. Our legal team has handled hundreds of cases and has successfully litigated a number of matters which gives us the experience to handle the simplest to the most complex cases.
We generally structure our attorney fees for condemnation cases on a contingency fee basis, meaning you only pay attorney fees if we obtain a verdict or settlement amount above the government’s initial written offer for the acquisition of your property rights. Our contingency fee for condemnation cases is generally 33 1/3% of any amount obtained over and above the government’s initial written offer to you. We generally cover all costs while your case is pending which is reimbursed to the firm after the contingency fee is calculated upon the conclusion of the case. You are not responsible for reimbursement of costs if there is no recovery in an amount over and above the government’s initial written offer.
Contact us today to talk to an attorney about any South Carolina eminent domain matter including South Carolina Department of Transportation (SCDOT) land issues.