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The government’s power to take private property has always engendered debate, but eminent domain has become an especially hot topic in recent years. The media have reported on new projects funded by federal stimulus money, the “Border Fence,” the Trans Texas Corridor, the popular and legislative responses to the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, and other legislative and judicial decisions. Yet most people do not have a clear understanding of how the condemnation process works in Texas—or the reason for eminent domain in the first place.
The purpose of this webpage is to answer several frequently asked questions about eminent domain. As explained in our terms of use, nothing on our website is intended to be legal advice. You should always consult with a competent attorney, who should be able to answer your legal questions and help you understand your legal rights.
What do the terms “eminent domain” and “condemnation power” mean?
“Eminent domain” and “condemnation power” are terms that are often used interchangeably. Eminent domain is the inherent power of the state and federal governments (and certain private companies acting under their authority) to take private property for public purposes. "Condemnation of property" has a couple of meanings. Condemnation is the formal act by which the authority with eminent-domain power uses that power to transfer title from the private property owner to the condemning authority. This act should not be confused with the exercise of police power to "condemn" property for failure to maintain it.
What are the constitutional bases of eminent-domain power?
Although the U.S. Constitution’s text does not explicitly grant eminent-domain powers to the federal government, the U.S. Supreme Court has explained that “[t]he power of eminent domain is essential to a sovereign government.” United States v. Carmack, 329 U.S. 230, 236 (1946). The Court in Carmack noted that eminent domain must be “received as a postulate of the constitution” in order to invest the U.S. government with “full and complete power to execute and carry out its purposes.”
The Fifth Amendment to the U.S. Constitution provides further support for the federal government’s eminent-domain power, but also places important limitations and protections on the use of that power. The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” According to the U.S. Supreme Court in Carmack, the amendment’s text “is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.” The Fifth Amendment also protects property owners by forcing the federal government to pay “just compensation” for the property taken and by permitting the federal government to condemn private property only when it does so for a “public use.”
Likewise, Article I, Section 17 of the Texas Constitution guarantees property owners “adequate compensation” when their property is “taken, damaged, or destroyed” for public use.
Why do governmental agencies (and other entities with delegated authority) use condemnation to acquire property?
The traditional answer is that individual landowners could refuse to sell their property, or consent to selling it only at unreasonably high prices, making it difficult or impossible for the condemning authority to build certain infrastructure or other public projects that would benefit the public at large. (Many people, including partner Glenn Sodd, have pointed out defects in Texas’s eminent-domain system. Click here to read excerpts from Glenn’s testimony to the Texas legislature about problems with the current system.)
What are the most common types of condemnation projects?
The most common projects are the construction or expansion of infrastructure such as roads, highways, bridges, municipal infrastructure, electric-transmission lines, water pipelines, oil or gas pipelines, rail lines, dams, water reservoirs, and public buildings. As Texas’s population continues to grow, the number of new infrastructure projects will continue to rise.
What are some of the important questions you should ask before hiring a Texas law firm to represent your interests in a condemnation case?
- "How many multi-million dollary jury verdicts have you won for your clients in the past five years?"
- "If I hire you as my lawyer, will you actually work on my case?"
- "Can I reach you or do I simply get referred to an associate?"
- "Do you represent condemning authorities in which you take contrary positions to those of landowners?"
How does the condemnation process begin in Texas State Court?
Typically, the entity with condemnation power (the “Condemnor”) plans for a public project and determines whether it may need private land for completion of the project. The specifics of the project, particularly its exact location, may take months or years to finalize. In some situations, landowners often have the opportunity to provide input on the final location of the project by participating in proceedings conducted by the Condemnor. Once the exact location of the project is determined, the Condemnor must make a formal declaration that, due to public necessity, certain property rights must be acquired from property owners in order to complete the project. |
The Condemnor is required to notify all property owners whose land will be taken for the project. The Condemnor will often order a property appraisal, in which an appraiser attempts to calculate the fair market value of the entire property and the specific property rights sought to be acquired by the Condemnor. A land-acquisition agent for the Condemnor will use the amount in the appraisal report to make an offer to purchase the property needed for the project. This offer will satisfy the legal requirement that the Condemnor negotiate “in good faith” with the landowner.
The “offer” may have a time limit that requires the landowner to respond by a particular date. The landowner is free to accept or reject the offer. The initial offer letters sent by condemning authorities can often be both confusing and, at times, intimidating to property owners who do not understand the eminent-domain process.
What happens if the landowner does not want to accept the condemning authority’s initial offer to purchase the property?
Assuming the offer is rejected, the Condemnor will file a lawsuit against the landowner in order to acquire the property rights it seeks. In Texas, the document the Condemnor uses to initiate the lawsuit is called an “Original Petition.” Texas law requires the Original Petition to be filed in the county where the property is located. Rather than immediately launch into full-scale litigation, the next step in the Texas condemnation process is for the parties to conduct a special commissioners’ hearing, which is usually presided over by three court-appointed commissioners. The special commissioners must be disinterested property owners who reside in the county where the condemnation takes place. Interestingly, the commissioners in most cases have no legal background or training, yet Texas law gives them considerable power to make an initial determination of the value of the condemned property.
The burden generally falls to the Condemnor to coordinate with the commissioners to set up the special commissioners’ hearing. Texas law requires that each party be given written notice of the hearing date (no later than the eleventh day before the day set for the hearing). The Condemnor will sometimes try to accommodate the landowner’s schedule in setting the hearing. The special commissioners’ hearing can provide the parties with an expedited method for making an initial determination of the “adequate compensation” owed to the landowner. In this informal administrative proceeding, both the Condemnor and the landowner can put on evidence supporting their positions on fair market value. The landowner should talk with legal counsel before deciding whether to attend and participate in the hearing, but he or she is not required to do so.
At the hearing’s conclusion, the special commissioners will issue a Special Commissioners’ Award, which sets out the commissioners’ independent opinion as to the value of the property. To claim possession of the property the Condemnor must then deposit that amount with the registry of the court. The landowner has the option to withdraw the award, but should consult an attorney beforehand as significant legal rights may be implicated. Once the special commissioners’ hearing has been conducted, the Condemnor (assuming compliance with various other requirements) may taken possession of the property and begin construction of the project.
But this is not necessarily the end of the condemnation process. If either side is unhappy with the award, the landowner and the Condemnor may object to the Special Commissioners’ Award on or before the first Monday following the 20th day after the day the commissioners file their findings with the court. In doing so, the condemnation lawsuit will be “appealed” to the trial court and the case will move forward in a manner similar to other lawsuits. The trial is “de novo,” which means that both parties start from square one and the case proceeds as if the commissioners’ hearing and award had not occurred. In Texas State Court, the landowner has the absolute right to a jury trial.
Can a landowner prevent the condemning authority from taking his or her property?
Sometimes. The landowner may convince the court system that the Condemnor lacks condemnation power, that the taking is not for a “public use,” or that the Condemnor has failed to comply with statutory and other legal requirements in attempting to take the property. It is important to consult with an attorney about the potential methods for preventing the Condemnor’s action. But the main issue in most condemnation cases—whether the Condemnor has provided “adequate compensation” for the taking—is not itself a valid basis for preventing a taking.
What is “just compensation” or “adequate compensation”?
Once the Condemnor has established its legal authority to condemn the subject property and has complied with relevant law, most disputed condemnation cases boil down to one main issue—money. The U.S. Constitution protects a property owner’s right to “just compensation” for condemned property; the Texas Constitution offers “adequate compensation.” “Adequate compensation” is generally considered to be fair market value, which is the price a willing buyer would pay to a willing seller. Fair compensation is also determined by the type of “taking” that occurs. For example, if an entire property is condemned, the landowner is entitled to receive the fair market value for the entire property. But if only a portion of the property is condemned, the landowner may be compensated for the portion of the property actually taken as well as for damage, if any, to the landowner’s remaining property.
Do condemning authorities ever offer less than the fair market value of the property they seek?
Yes. Determining the correct amount of just compensation is often hotly contested by the parties and can be a slippery task (as evidenced by the wealth of Texas cases on the topic). It is often essential to have an experienced attorney and appraiser to ensure that fair market value is determined properly. |
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