Eminent Domain - Frequently Asked Questions
Receiving a notice stating the government wishes to take your property through a process called eminent domain is unnerving. At its core, eminent domain is a right the government has to appropriate private property for a public purpose, with just compensation given to the property owner for the loss of property and damages to the property remaining. The process is rarely cut and dried, leaving many property owners with questions such as those outlined here.
1. Does the government have the right to take my property?
In some cases yes and in some cases no. Cases depend on two factors -- who is taking the land and for what purposes. The State of Ohio has the power to take property and delegates that power to its agencies (such as the Ohio Department of Transportation). Other branches of government including cities, townships, conservancy districts, hospitals, schools and watershed districts have the right to take property given to them by the legislature. The right to take property also includes common carriers such as railroads and utilities such as telephone companies. The taking of private property must be for a stated public purpose.
In the State of Ohio, no property can be taken solely for economic development. In addition, the government cannot take private property and hand it over to a private company.
Mistakes early in the eminent domain process can result in negative outcomes. For example, an appraisal that does not encompass all valuation aspects of the property, such as loss of parking spaces, will result in lesser amount due the landowners because of them not being mentioned in the appraisal.
If the appraiser hired by the landowner has done work for the government in the same location and on the same project, it is unlikely the property owner will receive valuation higher than what the government received.
2. Do I have to take the government's first offer?
No! Property owners have the right to hire their own legal counsel and appraisers as well to negotiate a fair settlement with the government.
3. Can they come on my property?
With prior notice to the property owner, the government may have surveys done on the very land they are taking, stake out property and develop legal descriptions. Should any damage to the property occur during this process, they must compensate the owner.
4. Do I need an attorney?
Eminent domain law is very technical. Owners who hire legal counsel with eminent domain experience, and in particular knowledge regarding construction plans and appraisals, may better navigate the process than owners who do not.
5. How much does it cost to hire an attorney?
If you are a landowner, most eminent domain attorneys charge a fee based upon the difference between the original offer made by the government and the final settlement or jury verdict number, normally a third of that difference. Thus, the landowner retains the original offer made by the government, and the attorney has no claim on that original offer.
6. Do I have to hire an appraiser?
Since eminent domain is based upon an appraisal of the property, usually it is necessary for the property owner to have their own appraisal. However, sometimes just pointing out errors and problems with the government’s appraisal may be enough. Should that not be the case, other factors to consider are who did the government’s appraisal and does the appraiser have a designation of MAI (Masters of Appraisal Institute). Not very many appraisers can perform an eminent domain appraisal. There are facets unique to the law that appraisers who are unfamiliar with eminent domain law may miss, to the detriment of the landowner.
Should you have any further questions regarding eminent domain, please contact Ms. Webb.
Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.