Condemnation or Appropriation refers to the power of government to take private property for public use. The United States Constitution, and state constitutions, give the government the right to take private property for public use, but require that the landowner must be paid “just compensation”. There are detailed Federal and State laws that describe the process that must be followed to condemn or appropriate private property.
Federal, state and local governments generally have the power to condemn private property for public use. Many government agencies, such as school boards, water & sewer departments, and public works departments, are able to take private property by eminent domain. State legislatures have also granted the power of eminent domain to certain private companies, such as oil and gas companies, electric companies, railroads, redevelopment authorities, and other privately-owned utility companies.
Typically, landowners learn that a government is planning a project that may affect their property through public notices or local news reports. Often public hearings are announced in advance of a project, and affected property owners are notified and have an opportunity to view plans, ask questions, and comment on the project. The condemning authority must give you information about the project, how the project may affect your property, and how much of your property the project will take.
To officially take private property for a public use, the condemning agency must provide the landowner with an official, written “Notice”, which includes project plans, specific information on the property that will be taken, and a written offer of compensation. In Ohio, the condemning authority must give the landowner a copy of the appraisal used to calculate the compensation that the condemning agency is offering to pay to the landowner.
In Ohio, after the landowner receives the formal Notice of an appropriation, the landowner is usually contacted by an agent for the condemning agency to discuss the agency’s monetary offer. If the landowner does not agree to accept the agency’s offer, the agency will file suit in Court to begin the legal process required to take property by eminent domain.
The length of the appropriation process depends on whether the case is resolved by an out-of-court settlement or by trial. Generally, settlements occur within 6 -9 months after the appropriation is filed, and trials are held approximately a year or more after the initial filing.
In an eminent domain case, legislative statutes, prior Court decisions, appraisal standards, and other laws or standards can significantly affect the amount of compensation a landowner receives. The condemning agency has full knowledge of eminent domain laws, rules, and regulations, and the landowner may hurt their case by negotiating without an experienced eminent domain attorney. While the landowner may negotiate directly with the condemning agency, any information that the landowner provides to the condemning authority can be used against the landowner.
When the landowner does not accept the condemning authority’s initial offer, the case may be filed with the Court. After the case is filed with the Court, the condemning agency and the landowner’s attorney may continue to negotiate directly with each other, or may participate in a Mediation in an attempt to settle the case without a formal trial. If the case is not settled before trial, the case is usually tried to a jury, and the jury determines the compensation that the agency must pay to the landowner.
State and local governments, the Federal Government, and other entities such as utility companies, are provided with the right to take private property for a public purpose. If the taking is not for a public purpose, the appropriation can be challenged. If the taking is for a public purpose, and is otherwise permitted by law, it is difficult to prevent the taking. In some cases there may be an opportunity to negotiate the size, location, or other aspects of the taking with the condemning agency
Most appropriation cases are settled through negotiations that your attorney will have with the condemning agency, or through a Mediation. During a Mediation a neutral Mediator will sit down with both parties and their attorneys, and try to help settle the case. If the case is not settled through negotiation or Mediation, cases are usually decided at a jury trial.
The 5th Amendment to the U.S. Constitution guarantees that private property cannot be taken for public use unless just compensation is paid. There are many laws that define how “just compensation” is determined. We use our experience and knowledge of eminent domain law to maximize the compensation you receive. In the event that only part of a landowner’s property is taken, the landowner is entitled to receive compensation for the part that is taken, and compensation for any lessening of value (damages) to the remaining property that is not taken.
Initially, the appropriating agency obtains an appraisal to determine their offer for a taking. An eminent domain appraisal must meet requirements unique to eminent domain valuations, and is different than an appraisal prepared for general real estate purposes, such as to obtain a loan. Often, an eminent domain appraisal calculates the value of the property before the appropriation, and the value of the property after the appropriation. The difference between the “before value” and the “after value” is the compensation that is offered to the landowner. We consult with appraisers, architects, engineers, pipeline experts, and other experts to determine how the appropriation affects the landowner’s property. The appraisal and other expert reports are used in negotiations, at mediation, and at trial, and are important evidence to justify the landowner’s compensation.
A “Partial Take” means that only part of your property is taken, and you will continue to own the part left over, which is called the “Remainder” or “Residue”.
A “Total Take” means that all of your property is taken.
You are entitled to receive compensation for the value of the part of your property that is taken, plus, you are entitled to receive compensation called “damages” if the property you have left is worth less because of the loss of the part taken. For example, if you own a restaurant and part of the customer parking lot is taken, you are entitled to payment for the value of the parking lot taken, plus, you are entitled to payment for “damages” to the remaining restaurant property because of the loss of customer parking spaces.