As the population of Texas continues to grow and more money comes in from the Infrastructure Investment and Jobs Act, public projects are planned all over the state. Some of these projects include new roads, schools, water and sewer lines, powerlines, and floodwater management. To complete these projects, Texas will need to acquire private property rights from landowners. This often requires the use of eminent domain.
What Is Eminent Domain?
Eminent domain is the power of the government to take private property for public use. The Fifth Amendment to the United States Constitution gives the government this power, but it must be used in a way that is “for public use and just compensation.” The right of eminent domain can be granted to private companies if the project is deemed for a “public use,” such as power lines or pipelines.
How Is “Just Compensation” Determined?
In an eminent domain case in which the entire property is taken, compensation is typically determined based on current market value. If only part of the property or property rights are being taken, then compensation is typically calculated based on the difference in the property value before and after the acquisition.
As the condemnation process begins, a right-of-way agent is often hired by the condemning authority to attempt to negotiate a purchase with the landowner without litigation. These are real estate professionals who are working to achieve the best result for the condemning authority, not the landowner. A surveyor may also contact the property owner with a request to visit the site to prepare a legal description of the property. In some cases, soil sampling or testing may be requested. These requests should be carefully reviewed.
Making an Offer
The condemning authority must make a written “bona fide” offer to purchase the rights it is attempting to seize before condemnation proceedings (the lawsuit that exercises the eminent domain power) can begin. The condemning authority must submit the form of legal instrument it wants to utilize, a written appraisal from a licensed appraiser that supports the compensation it is offering to pay, and a copy of the Landowner’s Bill of Rights (published by the Texas Attorney General’s Office).
If negotiation fails, the condemning authority can file a condemnation lawsuit to take ownership of the property. The appraisal’s evaluation is perhaps the most crucial phase of the condemnation procedure in its early phases. The condemnor’s appraiser must adhere to both Texas legislation and the Uniform Standards of Professional Appraisal Practice for this step to be effective.
The Importance of Speaking to an Eminent Domain Attorney
When their property is targeted for condemnation, the best thing property owners can do is to consult with an experienced eminent domain attorney as soon as they are contacted by a condemning authority. Most people are completely unfamiliar with the ins and outs of the eminent domain process and the unique rules of valuation used in these proceedings. What you do — or don’t do — in the pre-negotiation phase of the condemnation process can dramatically affect the final compensation you receive.
Here are just a few factors that must be examined carefully:
- Are there any entitlements or zoning designations that may affect the property value?
- Are there existing lease or loan agreements that may affect property value the disbursement of proceeds?
- Is the property being marketed, and if so, what are the terms of the listing?
- What is the effect of property tax valuation appeals?
- Will the taking affect the access, elevation, or drainage on the property?
Once the negotiation begins, having a team on your side with eminent domain experience is crucial to protecting your interests during the condemnation process. Condemnation valuations have unique rules and requirements. Professionals such as appraisers, engineers and land planners may be needed to properly assess the property, study its current function, and determine how the taking will affect it. Finally, the language of the deed, easement, or a court judgment can often be more important than the compensation paid, materially impacting the future use and burdens on a property.
Get Help Today
If you are a landowner who has been contacted by a condemning authority, we urge you to seek legal assistance as soon as possible. The eminent domain attorneys at Dawson & Sodd have represented hundreds of Texas property owners in condemnations throughout the state. We only work for property owners, never for condemning authorities, and we will fight to get you the best possible outcome in your case. Please contact us today at (903) 872-8181 for a free consultation.
