What is Eminent Domain and Condemnation?
Eminent domain is the power to take private property for public use. Condemnation is the legal process of taking property by exercising the power of eminent domain. The power of eminent domain is inherent in the sovereign (the federal and state governments). These sovereigns have the power to exercise eminent domain themselves, in their own names, or to allow others to exercise the power–such as counties, municipalities, and utility companies. The United States Constitution and the Alabama Constitution both recognize this power, but they limit the power by requiring the condemning agency to pay “just compensation” to the owner whose land is being taken or damaged. Just compensation means fair compensation, and fair market value is generally the measure. The condemnation action is a court proceeding through which the agency acquires the property interest it needs and the owner is awarded the just compensation to which they are entitled.
Because the market value of real estate is a matter of opinion, it is not uncommon for the condemning agency and the property owner to have different views on the amount of just compensation that is owed. Ensuring that the compensation awarded is fair requires experienced, skilled, and effective legal representation.
The owner’s only opportunity to be compensated for the taking of property is in the condemnation action, so it is imperative to look at the project with an eye towards identifying all the damages that the owner may sustain.
Selected Eminent Domain Judgments and Settlements
When we have represented the landowner, we have achieved the following results*:
|May 2023||Orange Beach||$1,300,490||$3,300,386|
|Nov. 2021||Gulf Shores||$1,185,566||$3,694,118|
|Nov. 2019||Gulf Shores||$403,000||$1,277,716|
|Sept. 2019||Orange Beach||$3,883,100||$8,250,000|
|April 2015||Gulf Shores||$206,000||$625,000|
|April 2009||Phenix City||$395,000||$2,000,000|
*The firm does not offer any guarantee of case results. Past results and past performance do not guarantee future results. The above information should not create any expectation that a similar result can be obtained for others. Each case is decided and evaluated on its own specific factual and legal circumstances. Contact us and we will be happy to discuss your case and what we may be able to achieve for you.
Who can exercise the power of eminent domain?
The State of Alabama and the United States of America both have the inherent power of eminent domain. These governmental entities can also choose to exercise their power through other entities that they determine serve a public use through a process inaccurately called delegating. The State of Alabama and the federal government can delegate the power of eminent domain to private and to other public entities. In this manner, counties, municipalities, public utility corporations, departments of the state, school boards, and other public entities have been granted the power of eminent domain by the State. Similarly, private corporations like utility companies, railroads, pipeline transportation companies, telephone companies and others whose business purpose is to serve the public have also been granted the power of eminent domain by the state.
To determine if a particular entity has the power of eminent domain, you need to find the state or federal law that delegated the power to them, and then determine if that delegation is broad enough to apply to the property in question for the project the agency has in mind. Just because an entity can condemn land for one purpose, does not mean it can condemn it for a different purpose.
What is a public purpose?
The Fifth Amendment grants the government’s power to take privately owned land for a “public use” as long as the owner is fairly compensated (awarded just compensation). The “public use” requirement under the Alabama Constitution has been given a liberal interpretation by the courts which is in keeping with the current federal court interpretation. “Public use” is anything that benefits the public or local economy, including but not limited to roads, commercial development, etc.
Why should I consult with an eminent domain attorney?
This is a specialized area of law, and most lawyers are not familiar enough with the unique laws to represent a client effectively. One common mistake we see is an owner, or a lawyer not familiar with the process, ordering an appraisal and giving it to the condemning agency as part of their negotiations. Appraisal reports are not disclosed or discoverable in condemnation actions, and the agency will take yours, but not give you theirs. An eminent domain attorney would be able to help negotiate with the agency without prejudicing your case.
Is it complicated to negotiate on my own?
It is not complicated to ask for a sum of money, but what is complicated is understanding what is compensable and what you are entitled to receive. Also, there are differences in how a settlement is closed, by court order or by deed, and the property owner has different rights and burdens depending on this decision.
What is just compensation and fair market value?
Just compensation is the payment of an award of money to the owner to put them in as nearly a good pecuniary position as they were in before the taking—the idea is to make them whole. The fair market value of property is the price it will sell for when it is offered for sale by a willing seller who is not forced to sell, and it is bought by a willing buyer who is not forced to buy. Fair market value is a matter of opinion, and condemnation cases typically involve a presentation of different opinions of fair market value to the fact finder.
Lawyers in the Eminent Domain and Condemnation practice area have received the following honors, invitations for membership, and professional recognitions:
The firm’s eminent domain lawyers are also members of the Owners Counsel of America (OCA). The OCA is an invitation-only group of practicing eminent domain attorneys and scholars who focus on representing property owners in condemnation cases. Each state has only one primary member. Casey Pipes is the Primary Member of the OCA for Alabama, and Warren Herlong is an Emeritus Member. For more information on OCA, please visit www.ownerscounsel.com.
Alternative Fee Arrangements
The firm provides a free, no-obligation initial consultation with landowners whose property is targeted for condemnation. In appropriate cases, and in most cases, the firm can agree to represent property owners on a contingency fee basis where we do not charge a fee unless we are able to improve on the condemning agency’s offer, and then our fee is only based on what we are able to recover above the agency’s offer. This arrangement helps ensure that the fee is not out of proportion to the measure of success we achieve, and it is an alternative to an hourly rate (which we are happy to do in all cases).
Question & Answer
Yes, through eminent domain.
Eminent domain grants the government the power to take your property for a public purpose, like building a road or a school. But before the government can do that, they must provide you just compensation for the property, including any improvements you’ve made to it.
Yes, you can! But there are only a few limited ways to stop the eminent domain process.
First, the government must prove they’re “taking” your property for a valid public purpose. Secondly, they must show that taking your property is necessary (if they take too much land, they may fail this). Thirdly, they must follow all statutory requirements, negotiate in good faith, accurately describe what property is being taken, and adhere to procedures designed to protect property owners.
Unfortunately, the eminent domain ruling won’t change if you can’t agree on compensation. The government will still take your property, but you’ll be compensated at the fair market value determined by the courts or condemnation commissions.
The constitution allows the condemnation of property for public use. Traditionally, this meant the government could take private land to build roads, schools, and public buildings. But as cities evolved, the definition of “public use” expanded to include redeveloping decaying neighborhoods and revitalizing commercial areas to combat “blight.”
More recently, however, local governments have been using eminent domain to transfer land to private corporations for public utility projects. Some states permit condemnations for economic development, while others do not. Consult an eminent domain lawyer in your state to determine if the condemnation is legal.
If you’re facing the prospect of the government wanting to take your property, take action and contact an eminent domain attorney pronto. As experts in property law, they can help you navigate the complex and often confusing world of eminent domain and negotiate with the government on your behalf.
Eminent domain is a complex legal area with serious implications for property owners like you. Seek expert help to better protect your property rights and ensure you get the fair treatment and compensation you deserve.
While negotiating with the government on your own is possible, condemnations are a complex process, and having an attorney on your side can be a huge help. The government is just like any other buyer in a real estate transaction. They will acquire your property at the lowest possible price.
If you’re unfamiliar with your property rights and compensation options, you may end up accepting a low offer. That’s where an experienced eminent domain attorney comes in handy. They can help you navigate the process, negotiate on your behalf, and ensure you’re properly compensated. So, while you can most definitely negotiate with the government on your own, having an attorney on your side can significantly benefit your case.