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Eminent Domain and
Condemnation
Eminent Domain is the power of the sovereign to take privately owned property for public use. Condemnation is the legal process involved in taking property by eminent domain. Acquiring property through eminent domain is often highly controversial. Legal processes must be followed, and property owners must be treated fairly. Owners are legally entitled to receive “just compensation” for the taking and damage to their property. Just compensation means fair compensation, and fair market value is generally the measure. Because the market value of real estate is a matter of opinion, it is not uncommon for the condemning agency’s property valuation to be lower than the property owner’s valuation. Ensuring that compensation is fair and just to both sides requires experienced, skilled and effective legal representation.
Helmsing Leach has some of the most experienced and respected eminent domain lawyers in the southeastern United States. The firm has represented both landowners and condemning agencies in some of the largest condemnation projects in Alabama. We have successfully represented clients in all manner of condemnation cases, including matters involving highways, private access roads, historical sites, nature preserves, government buildings, billboards, power lines, storm water drainage, water and sewer lines, petroleum and natural gas pipelines, industrial complexes, compressor stations, urban renewal, urban redevelopment, airport expansions, college campus expansions, commercial office building acquisitions, convenience store (C stores) takings, underground gas storage rights, communication systems, regulatory takings and blight. In short, there are few, if any, types of condemnation cases that we have not handled.
Lawyers in the Eminent Domain and Condemnation practice area have received the following honors, invitations for membership, and professional recognition:
- Fellowship in the American College of Real Estate Lawyers (ACREL)
- Membership in the Counselors of Real Estate (CRE)
- Chairman of the American Bar Association Section of Litigation’s Condemnation, Zoning and Land Use Committee
- Chairman of the American Bar Association Real Property, Trust and
Estate (RPTE) Section’s Condemnation Committee - Inclusion in Best Lawyers in America
- Named Lawyer of the Year by Best Lawyers
- Ranked by Chambers and Partners
The Firm’s 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.
Alternative Fee Arrangements
The Firm provides a free, no-obligation initial consultation with land owners whose property is targeted for condemnation. In appropriate cases, and in the vast majority of cases, the Firm represents 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.
Selected Eminent Domain Judgments and Settlements
When we have represented the land owner we have achieved the following results:
DATE | LOCATION | AGENCY’S OFFER | RECOVERY | |
Nov. 2019 | Gulf Shores | $403,000 | $1,277,716 | |
Sept. 2019 | Orange Beach | $3,883,100 | $8,250,000 | |
July 2018 | Elmore | $187,200 | $352,676 | |
Sept. 2017 | Elmore | $981,600 | $1,685,035 | |
Nov. 2016 | Huntsville | $2,000,000 | $5,200,000 | |
May 2016 | Fairhope | $188,870 | $390,000 | |
April 2015 | Gulf Shores | $206,000 | $625,000 | |
May 2014 | Mobile | $16,360 | $114,000 | |
May 2013 | Mobile | $61,834 | $760,000 | |
May 2013 | Mobile | $23,922 | $250,000 | |
May 2013 | Mobile | $27,624 | $335,000 | |
March 2013 | Mobile | $23,910 | $395,000 | |
Sept. 2012 | Dothan | $117,440 | $799,000 | |
Feb. 2011 | Daphne | $500 | $156,000 | |
Nov. 2010 | Daphne | $500 | $180,205 | |
August 2010 | Auburn | $701,000 | $1,425,000 | |
April 2010 | Huntsville | $75,663 | $250,000 | |
Feb. 2010 | Birmingham | $287,340 | $438,682 | |
April 2009 | Phenix City | $395,000 | $2,000,000 | |
Nov. 2007 | Montgomery | $647,550 | $1,100,000 | |
Sept. 2006 | Auburn | $263,200 | $2,165,844 | |
July 2006 | Florence | $124,200 | $489,379 | |
Jan. 2006 | Florence | $141,400 | $522,987 | |
May 2005 | Mobile | $137,400 | $511,746 |
The Firm does not offer any guarantee of case results. Past results and past performance does 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.
What is eminent domain, and is it the same thing as condemnation?
Eminent domain is the power to take property from the current owner against their will. Condemnation is the process and procedure that is followed when the power of eminent domain is being exercised.
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 which they determine serve a public use through a process inaccurately called delegating. The State of Alabama and the Federal Government can delegate to private and to other public entities the power of eminent domain. 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 the general process or procedure for exercising the eminent domain power (short answer)?
The legal process starts with a Condemnation Petition (or Complaint) being filed against the property owners in the local Probate Court. The Probate Judge sets a hearing and determines if the agency has the power to take the subject property, and if so, the Probate Judge then appoints three people to serve as Commissioners to determine the amount of compensation that is owed. The Commissioners hold a hearing, may visit the property, and ultimately enter a verdict. This verdict becomes the Probate Court Judgment amount.
Any party can appeal the Probate Court Judgment to the local Circuit Court for a trial de novo, and in Circuit Court any party can request a trial by jury on the issue of how much compensation is due. Even while the case is on appeal in Circuit Court awaiting trial, the agency can deposit the Probate Court Judgment and take possession of the subject property to build their project. The owner is entitled to withdraw the agency’s offer to purchase from the funds deposited.
What is the general process or procedure for exercising the eminent domain power (long answer)?
The Alabama Eminent Domain Code (Code of Alabama, 18-1A-1, et seq.) contains the process and procedure for all eminent domain actions in state courts in Alabama. This body of law was based on the Uniform Eminent Domain Code (now referred to as the Model Eminent Domain Code). The various aspects of the key processes and procedures are explained below in the order in which they normally arise.
Pre-Filing Procedures
The condemning agency must have the property inspected and appraised. The agency must give the owner a reasonable opportunity to accompany the appraiser during the inspection of the property. Code of Alabama, § 18-1A-21. Once the appraisal has been performed, the agency must use the appraisal to establish an amount which it believes to be just compensation, and it must offer to purchase the property from the owner for the amount of just compensation so determined. Code of Alabama, § 18-1A-22(a). The agency is not required to furnish the owner with a copy of the appraisal, but it is required to submit a written statement and summary of the basis for its offer. Code of Alabama, § 18-1A-22(d). The agency is not required to negotiate with the owner, it is only required to offer to purchase the property based on an appraisal before initiating the condemnation process.
It is a defense to a condemnation action that the agency did not (1) allow the owner the opportunity to accompany the appraiser or (2) provide a detailed offer letter offering to purchase the property prior to filing the action. Code of Alabama, § 18-1A-21; Code of Alabama, § 18-1A-55.
Pre-Filing Entry for Suitability Studies
To accomplish the conditions precedent, and to determine suitability and other matters, an agency has the power to go on land to conduct suitability studies, surveys, and other matters. Code of Alabama, §§ 18-1A-50 through -54. If the owner resists, the agency can get a Circuit Court order allowing entry. Code of Alabama, § 18-1A-51.
Complaint for Condemnation
After the pre-filing procedures have been satisfied, the agency files a Complaint for condemnation in the Probate Court for the county in which the property (or any part thereof) is located. Code of Alabama, § 18-1A-71. The Complaint must contain: (1) the names of the plaintiff and defendants; (2) a legal description of the property and the nature of the interest to be taken; (3) the basis for the plaintiff’s legal authority to take property by eminent domain; (4) a statement of the agency’s intentions or purpose for taking the property; and (5) a list of all items of equipment or fixtures which the condemnor seeks to acquire and which are attached to the property. Code of Alabama, § 18-1A-72(a). The Complaint must also be accompanied by a map or diagram showing the property sought to be taken and the remainder of the owner’s land, if any. Code of Alabama, § 18-1A-72(d).
While the agency must also file a notice of the pendency of the condemnation action (lis pendens) in the probate courts in which the property is located, the failure to do this is not a defense to the condemnation action. Code of Alabama, § 18-1A-75(a).
The Complaint must be served on the defendants as provided in Rule 4 of the Alabama Rules of Civil Procedure. Code of Alabama, § 18-1A-74(b).
Owner’s Answer and Preliminary Objections
An owner must file an Answer to the Complaint if they challenge the right or authority of the agency to take their property (either on constitutional or statutory grounds) or if they dispute the area to be taken or the area which will remain after the proposed taking. Code of Alabama, § 18-1A-90 (Answer); 18-1A-91 (Answer and Preliminary Objections). Well-plead allegations in the Complaint which are not denied in the Answer may be deemed admitted. Code of Alabama, § 18-1A-91, Commentary.
Preliminary objections are any available grounds for objecting to the condemnation action. Code of Alabama, § 18-1A-91(b). These could be challenges to the agency’s power of eminent domain (based on lack of authority, lack of necessity and/or intended use is private rather than public) or to the condemnation action itself (based on failure to comply with pre-filing procedures, failure to properly plead Complaint, lack of jurisdiction of court over property or defendants, or any other deviations from the Alabama Eminent Domain Code).
Discovery in Probate Court
Some Probate Courts allow the parties to conduct discovery while others do not. The Alabama Eminent Domain Code does not directly address this issue, and there is authority for both sides of this issue. Code of Alabama, § 18-1A-93, Commentary (“Nothing in this section directly affects the right to pursue discovery proceedings. Discovery, of course, may be an important prelude to resolution of fact issues raised by one or more objections pleaded in the answer.”); but see, Ala. R. Civ. P. 71A (“These rules [of civil procedure] do not apply to probate courts where condemnation proceedings originate.”); Code of Alabama, § 18-1A-70 (“The procedure [for condemnation] in the probate courts shall be as provided in this chapter.”). As a practical matter, the Probate Judge is not likely to be challenged, much less reversed on mandamus, if they allow or prohibit discovery – which is to say it is in the Probate Judge’s discretion.
Merit Hearing and Orders
The Probate Court will schedule a merit hearing on the agency’s right to take the property. Code of Alabama, § 18-1A-276. At this hearing, the agency generally has the burden of proof on all issues of fact relating to a preliminary objection. Code of Alabama, § 18-1A-94(a). The exception to this general rule is that the owner has the burden of proving by clear and convincing evidence all allegations of fraud, corruption, bad faith, and gross abuse of discretion. Code of Alabama, § 18-1A-94(b). Preliminary objections which are sustained may result in the following types of relief:
(1) Dismissal of the action, in whole or in part, if the plaintiff is not authorized to take the property, or some part thereof, or the acts or omissions constituting the basis for the objection will necessarily inflict irreparable injury upon the defendant;
(2) Conditional dismissal, in whole or in part, unless, within a specified period, the plaintiff takes corrective or remedial action prescribed in the order, including, if appropriate, the adoption of a new or amended condemnation authorization; or
(3) Any other disposition required by the circumstances.
Code of Alabama, § 18-1A-95(a).
In the event a preliminary objection is sustained, the court has the discretion to order the agency to pay the defendant’s litigation expenses, including attorney’s fees, expert fees, and costs. Code of Alabama, § 18-1A-95(b). The court must award litigation expenses to the defendant in the event the court finds that the agency “acted or failed to act without justification”. Code of Alabama, § 18-1A-95(b).
After being raised in an Answer, a preliminary objection may be also asserted in the form of a motion to dismiss. Code of Alabama, § 18-1A-230(1). In addition to the preliminary objections originally raised, the agency’s failure to exercise reasonable diligence in prosecuting the condemnation action may be asserted as grounds for dismissal upon motion of the owner. Code of Alabama, § 18-1A-230(2).
If a condemnation action is dismissed, either voluntarily or involuntarily, at any stage, this dismissal will not act as a bar against a subsequent condemnation effort for the same property. Alabama M. Ry. Co. v. Newton, 10 So. 89 (Ala. 1891); see also, Alabama Power Co. v. Thompson, 32 So. 2d 795, 799 (Ala. 1947). Thus, an agency may appeal a dismissal to circuit court for a trial de novo. Code of Alabama, § 18-1A-286. Alternatively, the agency may re-file its condemnation Complaint in probate court and begin the process anew. Alabama M. Ry. Co. v. Newton, 10 So. 89 (Ala. 1891). It is not a defense to a condemnation action that the agency was previously unsuccessful in taking the owner’s property.
If the preliminary objections are overruled (and any motions to dismiss are denied), then the court will enter an order granting the Complaint, sometimes referred to as a “Right to Take Order.” Code of Alabama, § 18-1A-276.
Hearing on Just Compensation
Within ten days after entry of the Right to Take Order, the Probate Court must appoint three persons to act as Commissioners whose job is to determine the damages and amount of just compensation due to the owner. Code of Alabama, § 18-1A-279. Some jurisdictions allow the parties to have input over the commissioners appointed. The condemnation hearings, including the admission of evidence, are conducted as if the action was a civil case at law, except as provided in the Alabama Eminent Domain Code. Code of Alabama, § 18-1A-277. Neither party has the burden of proof on the issue of just compensation. Code of Alabama, § 18-1A-153. Only legal evidence is to be presented at the hearing (Attorney General’s Opinion 2004-052 (December 20, 2003)), but these hearings are typically very casual and are usually conducted outside the presence of the Probate Judge. Sometimes the Commissioners will visit the property, sometimes they will not.
After hearing all the evidence, the Commissioners will return a report of just compensation, or verdict, to the Probate Court. Code of Alabama, § 18-1A-281. This report must be returned within twenty (20) days of the date of the Commissioners’ appointment. Code of Alabama, § 18-1A-282. If the Commissioners will not be able to return a verdict within this time frame, the Probate Court should re-appoint the Commissioners from time to time as needed.
Judgment of Condemnation
Once the Commissioners return their verdict to the Probate Court, the Probate Court must, within seven days, issue a Judgment of Condemnation which states that the subject property be condemned upon deposit into Probate Court of the amount of just compensation and damages assessed by the Commissioners. Code of Alabama, § 18-1A-282. This is the Probate Court’s Judgment of Condemnation.
The agency, the owner, or both may appeal the Probate Court’s Judgment of Condemnation to the Circuit Court. Code of Alabama, § 18-1A-283. If neither party appeals, the agency may pay the judgment at any time within 90 days of the entry of the Judgment. Code of Alabama, § 18-1A-290. If the agency does not pay the judgment within 90 days, and no appeal is filed, then the owner may move the court to vacate the Judgment and for an award of their damages, including attorney’s fees. Code of Alabama, §§ 18-1A-215 and 18-1A-290.
Appeal to Circuit Court
In order to perfect an appeal, a notice of appeal must be filed with the Probate Court within thirty (30) days of the Probate Court Judge signing of the Judgment of Condemnation. Code of Alabama, § 18-1A-283.
Once appealed, the condemnation trial essentially starts over. The circuit court does not review the probate court’s judgment, but instead sets the matter for a trial de novo. Code of Alabama, § 18-1A-283.
Either party may demand a jury trial on the issue of just compensation, but the trial judge will decide whether the agency has the right to take the subject property (if this issue is raised on appeal). Code of Alabama, § 18-1A-151(a); Palughi v. City of Mobile, 526 So. 2d 1 (Ala.), cert. denied, 488 U.S. 855 (1988).
Right of Entry
Immediately after the Probate Court enters the Judgment of Condemnation, and without regard to whether either party has filed an appeal to Circuit Court, the agency may take steps to gain immediate access to the property. When the sovereign is the condemning agency it must first pay the amount of the Judgment into the probate court before it can enter the property. Southern Natural Gas Company v. Ross, 275 So.2d 143 (Ala. 1973); Code of Alabama, § 6-5-1(a). If the agency is not the sovereign, it must not only pay the amount of the Judgment, but it must also post a bond equal to two times the amount of the Judgment before it can enter the property. Code of Alabama, § 18-1A-284.
The agency’s right of entry carries with it the right of possession, including the right to begin work on the subject property such as cutting trees, building roads, or whatever work is associated with the project for which the land was taken. Code of Alabama, § 18-1A-289. Any work performed on the subject property is at the agency’s peril if it is later found to not have the power to take the subject property by condemnation or if it later elects to abandon the project or dismiss the condemnation action. Code of Alabama, § 18-1A-233; Code of Alabama, § 18-1A-215.
If the agency does not desire immediate access to the property, it does not have to pay any amount into court pending the appeal, but it must pay the final Judgment within 60 days of the resolution of the appeal. Code of Alabama, § 18-1A-290.
Title to Money and to Land
Title, as distinguished from right of possession, to the subject property does not pass to the agency until the condemnation process has been finally adjudicated, including all appeals. Code of Alabama, § 18-1A-289. This means that even though the agency may have entered upon the property and constructed its improvements, the title to the land is still held by the owner for so long as the condemnation action is pending. Likewise, any money paid into probate court by the agency remains the property of the agency until title to the real property passes to it. Code of Alabama, § 18-1A-231.
Just as the agency has a right to enter upon the property prior to title passing, the owner has a corresponding right to the immediate access to a portion of the money paid into court. This process is commonly referred to as “drawing down.” The owner is entitled to draw down the amount of the agency’s pre-complaint offer to purchase from the money deposited into court (if any). Code of Alabama, § 18-1A-110.
If the amount of this offer is less than the Judgment, then the owner or agency should, by motion, request the probate court to invest the remainder of the Judgment in an interest earning account. Code of Alabama, § 18-1A-111.
Discovery in Circuit Court
Each party is entitled to the full discovery procedures provided for in the Alabama Rules of Civil Procedure, except as limited by the Alabama Eminent Domain Code. Code of Alabama, § 18-1A-70. Appraisal reports prepared in contemplation of the condemnation action are specifically exempt from discovery. Ex Tuscaloosa County, 825 So.2d 729 (Ala. 2001); State v. Bragg, 710 So.2d 417 (Ala. 1917); Code of Alabama, § 18-1A-130. This exemption extends to the information contained within an appraisal report that a party may seek to obtain through some other form of discovery than a request for production.
Jury Trial
Either party may request a jury to determine the amount of just compensation. Alabama Constitution, Art. XII, Sec. 235; Code of Alabama, § 18-1A-151.
Appeal from Circuit Court
After its trial, the circuit court will enter a Judgment which may be appealed to either the Court of Civil Appeals or the Supreme Court depending on the amount of money involved. Code of Alabama, § 18-1A-288.
What limitations and defenses exist to the eminent domain power?
There are limitations and defenses to the exercise of the power of eminent domain which are found in the Alabama Constitution and in various state laws. The Alabama Constitution states that, “private property shall not be taken for, or applied to public use, unless just compensation be first made therefor.” Alabama Constitution, Art. I, Sec. 23. This means that property must be necessary for a public use before it can be taken. Also, while this may sound like the Fifth Amendment to the U.S. Constitution, it is different by including the word “first”. This one word ensures that the property owners in Alabama are to receive just compensation for the taking before they lose their property.
The Alabama Constitution goes on to state that, “the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations…” Alabama Constitution, Art. I, Sec. 23. This provision limits the ability of private corporations and those who have been delegated the power of eminent domain to only acquiring a “right of way” from a property owner, as opposed to fee simple title.
The Alabama Eminent Domain Code provides some additional, procedural defenses to condemnation actions. Also, the statutes which delegated the power of eminent domain to various entities may also contain defenses or limitations on the use of the power.
What is a public purpose?
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.
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.
Can an owner recover damages to their remaining property?
Yes. When some land is being taken but other land is going to remain with the owner, this is called a partial taking. The valuation approach in partial takings is to award the difference between the fair market value of the entire property before the taking (the “before value”) and the fair market value of the property remaining after the taking assuming that the project for which the land was taken had been built (the “after value”). The difference between the before and after value is the amount of just compensation that is owed.
Can the condemning agency take possession of property prior to final compensation being paid?
Yes. After the Probate Court Judgment is entered the agency can deposit the judgment (and some agencies must also post a bond in twice the judgment) and take possession of the property to build its project. This is true even if one or both parties appeal the Probate Court Judgement to Circuit Court.
Is the landowner entitled to recover attorney fees?
No. Alabama law does not allow a landowner to recover its attorney’s fees unless the condemnation action is dismissed. Our firm handles condemnation actions for property owners on an hourly rate basis, on a contingency fee basis, and on a hybrid basis. We can tailor our fee arrangement with our clients to suit their needs, interests, and objectives. We would be happy to discuss what fee arrangement may work best for you in your case.
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