Here are some frequently asked questions that might help you understand the eminent domain process. Every taking is different, and the Nicholls & Crampton Eminent Domain Practice would be happy to answer any specific questions you have or discuss your case in more detail.
Eminent domain is the government’s inherent right to take private property for a public use, subject to the payment of just compensation for the taking. The government’s power of eminent domain is limited by the Fifth Amendment to the United States Constitution, which states that private property cannot be taken for public use without payment of just compensation. The North Carolina Constitution has been interpreted to provide similar protections to private property owners.
Land condemnation is the act of exercising the right of eminent domain to take private property for a public use. A land condemnation action is generally initiated by the filing of a complaint or petition in the county in which the property is located. Sometimes a settlement can be reached before a condemnation action is initiated.
Federal, state, and local governments all have the power to condemn private property for public purposes. This power has been delegated to government agencies including the North Carolina Department of Transportation. This power has also been delegated to “quasi-public” entities such as public utility companies, but these “private condemnors” are subject to different procedures and restrictions. Under federal and North Carolina law, all entities possessing the power of eminent domain are subject to the constitutional requirements that 1) a taking must be for a public use; and 2) the property owner must receive just compensation for the taking.
If it appears that your property will be affected by a governmental taking, you should be proactive and take action before the process begins, if possible. It is a good idea to seek advice from an attorney experienced in condemnation law and eminent domain issues. As a property owner, you should try to avoid saying anything that could be used against you in the land condemnation proceeding. Ask lots of questions and gather as much information as you can about the taking and the project.
As a general rule, the government can take your property if the property is taken for a “public use” and the proper procedures are followed. It is important to examine your individual circumstances to see if the government’s taking is legally proper or whether it could be contested.
In North Carolina, the measure of compensation for the taking of your entire property is the fair market value of the property on the date of the taking. In general, the date of valuation is the date that the land condemnation petition or complaint is filed.
If only part of your property is taken, a “partial taking” has occurred. The measure of compensation for a partial taking depends on the nature of the taking. In some cases, the measure of compensation is based on the difference between the fair market value of the entire property immediately before the taking and the fair market value of the remainder immediately after the taking. In other cases, compensation is based on the greater of either: (1) the fair market value of the land taken, or (2) the difference between the fair market value of the property immediately before the taking and the fair market value of the property immediately after the taking.
The appraiser must value your property at its highest and best use, which is not necessarily its present use. The three most common approaches used by appraisers in valuing property in land condemnation cases are the market approach, the cost approach, and the income approach. In addition to valuing the land acquired, appraisers should also consider the impacts the taking will have on the remainder property and whether the remainder is “damaged” by the taking.
No. It is important to understand the basis of the offer and the full impact of the taking on your remaining property before deciding whether to settle your case.
If you and the condemning authority are unable to reach an agreement on just compensation owed for the taking, then generally the condemning authority will file a condemnation lawsuit in superior court in the county where the property is located. The filing of the lawsuit triggers certain deadlines depending on the nature of the taking. At that time, you should consult an eminent domain attorney to be sure your rights are protected, if you have not already done so.
