As the population of Texas continues to grow, 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.
The eminent domain condemnation process is a complex and often confusing legal procedure. It’s easy to understand why many Texas landowners, most of whom are not familiar with Texas eminent domain laws, are unsure how to proceed after being served notice that the government is going to seize their land.
If you are a landowner in Texas, you’re probably interested in learning more about the condemnation process and how it could impact the ownership of your property. We’ve provided the answers to some of the more common questions property owners have about condemnation in Texas.
Keep in mind that each person’s situation is unique, so the general answers provided here might not apply to your case and are not to be construed as legal advice about your particular case.
What Is Condemnation?
The U.S. and Texas Constitutions give local, state, and federal government the authority of “eminent domain” to acquire private property for public uses such as expanding a highway or building a school. Condemnation is the legal process through which the government exercises its right of eminent domain to acquire property.
Who can take private property through condemnation?
In Texas, private property can only be taken by an entity authorized by the state to do so. Private entities, like powerline pipeline companies, may be allowed to acquire private property if it is for public uses. Texas law prohibits using eminent domain to acquire property to enhance tax revenues or foster economic development.
What are some of the reasons for using condemnation to acquire land?
Your property can only be taken for a purpose or use that serves the general public. This includes roads, highways, bridges, parks, public buildings, as well as water, power, and gas lines.
“Just Compensation” for Landowners
The U.S. and Texas Constitutions also both require that the property owner receive “just compensation” for the taking of their property. In addition to receiving a market value for their property, landowners are also entitled to compensation for damages to remaining land caused by the acquisition.
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.
The Texas Eminent Domain Condemnation Process
The eminent domain condemnation process begins when a condemning entity makes plans for a public project, such as expanding a highway or building a new school. The projects’ location will determine which properties will be affected.
A Bona Fide Offer, Professional Appraisal and the Texas Landowner’s Bill of Rights
An entity with eminent domain authority that wants to acquire property for public use must make a bona fide offer to acquire the property from the property owner voluntarily. Before making their offer, the entity must obtain a written appraisal from a certified appraiser.
It must state the value of the property and the damages, if any, to the landowner’s remaining property.
This offer must be equal to or greater than the appraisal amount.
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.
When making its written, bona fide offer, the condemning entity must provide the property owner with copies of:
- All written appraisals the condemning authority has obtained
- The deed, easement, or other instrument conveying the property sought to be acquired
- The State of Texas’ landowner’s bill of rights
NOTE: The Texas property code specifically prohibits the condemning entity from including any non-disclosure provisions in its offer to a property owner. They are required to inform you that you have a right to discuss the offer or agreement with others. This means you have a right to hire legal representation to review the offer and represent your interests.
You have 14 days to respond to the offer. Before accepting or rejecting the offer, it’s important to seek the professional advice of an experienced Texas eminent domain lawyer.
If you decide to accept the offer, you are paid for your land. The deed is transferred to the condemning entity, and the process is complete.
The Pre-Negotiation Phase of the Condemnation Process
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.
What Happens If You Decide Not to Accept the Bona Fide Offer?
If you and the condemning entity do not agree on the value of your property, the entity may begin condemnation proceedings. This begins by the condemning entity filing a claim for your property in court. The claim must be filed in the county where the property is located.
In addition to describing the property being condemned, the claim must:
- Specify the intended public use of the property
- List the name of the landowner
- State that the condemning entity made a bona fide offer to acquire the property from the property owner voluntarily
- State that the condemning entity provided the landowner with the Landowner’s Bill of Rights
- State that the landowner and the condemning entity were unable to agree on the value of the property
After the condemnation claim is filed in court, the judge will appoint three local landowners to serve as special commissioners.
The Special Commissioners’ Hearing
The special commissioners appointed by the judge must all live in the county where the condemnation proceeding is filed. The role of the special commissioners is limited to making an award of compensation to the landowner. They may consider the value of your condemned property, the damages to remaining property, any value added to the remaining property as a result of the condemnation, and the condemning entity’s proposed use of your condemned property.
After hearing the information at the commissioners’ hearing, the Special Commissioners will make their decision, called an “Award”. The special commissioners will issue a written award stating an amount that the condemning entity has to deposit into the registry of the court in order to take possession of your property.
If neither party timely objects to the special commissioners’ Award, the court will adopt the Award as the final judgment of the court.
Appealing the Special Commissioners’ Award
If you or the condemning entity isn’t pleased with the amount of the commissioners’ award, either side can appeal the commissioners’ decision and has the right to request a trial by a judge or jury. Your objection must be filed in writing with the court in a timely manner.
If you question whether the condemning entity actually has the authority to condemn your property through the eminent domain condemnation process, you can also appeal the decision of the commissioners and ask the court to determine whether the entity has the power to condemn through the eminent domain condemnation process.
The appeal is heard in the same manner that other civil cases are heard. After the trial, either party may appeal the judgement entered by the court.
Keep in mind that after the original Award is filed, the condemning party can immediately take possession of your land by paying the amount of the Award, even if either party appeals the Special Commissioners’ decision.
What are my rights as a property owner during the condemnation process?
Your rights as a property owner are listed in the State of Texas Landowner’s Bill of Rights. This is a document prepared by the Office of the Attorney General of Texas and applies to any attempt by the government or a private entity to take your property through the authority of eminent domain.
Your rights during the condemnation process include:
- The right to see the appraisal that the condemning authority used to make you an offer of just compensation.
- The right to reject that offer and have a court of law decide what just compensation should be instead of just accepting the condemning authority’s estimation of just compensation.
- The right to contest that the taking is actually for a public use.
You also have the right to hire Texas condemnation attorneys to protect your interests and ensure you receive fair compensation. Exercising these rights early in the process can significantly impact the outcome of a condemnation case.
Download a copy of the State of Texas Landowner’s Bill of Rights here.
I’ve heard of something called “inverse” condemnation. What is that?
Inverse condemnation is a term used to describe a situation in which a property owner alleges that the government has acquired an interest in his or her property without proper compensation and without actually instituting a condemnation case against the landowner. If the government does not intend to acquire this land a property owner may initiate inverse condemnation proceedings to force the government to buy the land. In this scenario, the property owner is the plaintiff and the government is the defendant. Many times property owners initiate inverse condemnation proceedings after the government has damaged their property or regulated it in such a way that it’s economically unfeasible to continue working the land.
Can I hire a lawyer to represent my interests?
Absolutely! Given the legal complexity of condemnations and litigation appraisal rules, hiring an experienced Texas eminent domain attorney is the best way to protect your interests in a condemnation proceeding. A Texas condemnation attorney can assist you in determining the true market value of your property, filling out paperwork, meeting court deadlines, protecting your rights during the condemnation process and ensuring you get the full compensation for your property that you are due. The sooner you hire an experienced condemnation firm to assist you, the more likely it is that your rights will be fully protected.
Answers to Frequently Asked Questions About the Eminent Domain Condemnation Process in Texas
Is Condemnation Legal?
The Fifth Amendment of the U.S. Constitution gives the federal government to authority to take private property for public use. The constitution also requires that the government to provide just compensation to the property owners for their land.
Article 1, section 17 of the Texas State Constitution gives the state government the authority to take private land for public uses. It states who can use this power and, as in the U.S. Constitution, that the property owner must be compensated for their land.
In the state of Texas, eminent domain and the condemnation process are governed by Chapter 21 of the Texas Property Code and Title 10, Subtitle E, Chapter 2206 of the Texas Government Code.
Do I Have to Accept the Final Offer from a Condemnation Authority?
No. If you decide not to accept the final offer from the condemning authority, they will initiate a lawsuit to obtain the land. In that hearing, a judge will decide what fair and just compensation is for your property.
What Do You Need to Know if an Entity is Trying to Buy Your Land Through Condemnation Laws?
The laws around eminent domain can be complicated, so it is highly recommended that you hire an experienced lawyer early in the process. Some question to ask as you navigate the process:
• What, exactly, qualifies are “public use”?
• Does the entity that wants your land have eminent domain authority in Texas?
• Am I entitled to relocation costs?
• Are your rights under condemnation laws being protected?
What Questions Should I Ask When I Meet With an Eminent Domain Attorney?
Some questions you can ask to make sure that you find the right representation are:
• What is your experience in handling eminent domain disputes?
• Have you handled any cases similar to mine?
• Do you have any clients I can talk to as a reference?
• If I hire your firm, who will work on my case?
Case Results for Texas Condemnation Cases
In most cases, eminent domain can’t be stopped completely. However, sometimes it is possible to demonstrate that the condemning entity lacks authority to take a property. In one such case, the Texas condemnation lawyers at Dawson & Sodd represented a convenience store owner in Farmers Branch. TxDOT filed suit to take valuable land from the convenience store owner’s site as part of the I-35E project. Our attorneys took key depositions of the State’s witnesses to establish that the agency lacked didn’t have the legal authority to acquire the land. The State agreed to dismiss the condemnation action, and the landowner kept the very profitable land.
It’s Your Right to Speak with an Eminent Domain Lawyer in Texas
The eminent domain condemnation process in Texas is complex and very different from other types of property dispute cases. If you are a Texas property owner faced with condemnation of their land by an entity with eminent domain authority, it is important to understand your rights during the condemnation process. It is of the utmost importance that you contact an experienced eminent domain attorney early on in the process in order to adequately protect your rights in any eminent domain condemnation process.
Have you been contacted by a condemning entity? Call Dawson & Sodd at (903) 872-8181 to schedule a free consultation with an experienced Texas condemnation attorney. We will review the facts in your case, answer any questions you may have about the condemnation process and offer professional advice on the best way to protect your rights.
Our knowledge and expertise will ensure your interests are fully represented. We’ll make sure the condemning entity follows the letter of the law during the eminent domain condemnation process. We will recover the full compensation you are owed for your land. We will also negotiate with the condemning entity early in the process for you to ensure you are fully protected. Dawson & Sodd PLLC serves land owners all over the state of Texas.
