What to Do When You’re a Homeowner Threatened with Eminent Domain

The U.S. News Real Estate Section published an article on March 30, 2016, titled, What to Do When You’re a Homeowner Threatened with Eminent Domain.

The article lists some guidelines to protect yourself and your property.

Number one is to consult an attorney “as soon as you hear your property could potentially be taken for public use, which could come to you in the form of a mailed letter, in-person notice or phone call, depending on the government planning to take the property and its practices. Eminent domain is difficult, and not every lawyer is capable of navigating the details of the law.”

The most common surprise to property owners is that by the time the physical taking occurs or the ‘bulldozer is at your doorstep,’ the time to contest the taking or file a claim has expired and the property owner finds that its rights are waived and it is barred from taking any action.

Another surprise is that ‘small’ takings like easements or road-widening takings of a few feet may seem small and simple but can significantly impact property rights.  This is another reason to consult an eminent domain lawyer.

As Cathy Newman, executive director of Owners’ Counsel of America, an organization that aims to help private property owners threatened with eminent domain nationwide, stated, “When an easement is written by the condemning authority, it’s written by their attorneys, so it’s most likely going to be written in a manner that’s most favorable to their needs and their uses.  We would recommend an owner have an eminent domain attorney review that easement to ensure that their rights are protected and they’re not held … in a less favorable result afterward.”

Number two is to get your own appraisal, valuing your property at its highest and best use.

Very often, the taking authority severely low-balls the value of your property, either by using incorrect zoning, incorrect highest and best uses, incomparable sales, or comparable (low-value) sales that are improperly adjusted.

And number three is to decide whether to accept the initial offer of the condemning authority as payment in full, as an advance payment, or to fight the actual taking as unconstitutional.

However, as the article explains, fighting the use of eminent domain is difficult.

“The Kelo v. New London decision ruled in favor of the city to take private property in favor of new development. In the case, a number of residents in New London, Connecticut, sued the city for seizing their properties through eminent domain for the purpose of selling them to a private developer. While the residents argued the sale for private development did not constitute as public use, but both the Connecticut Supreme Court and the U.S. Supreme Court disagreed. The 2005 decision set the precedent for many cases of potential eminent domain abuse, and it was criticized by the public and many legislators for giving too much freedom to government agencies, under the argument that the government could now use eminent domain for the purpose of economic gain.”

Unfortunately, following Kelo, the New York Court of Appeals, New York’s highest court, essentially affirmed the Kelo decision in a pair of decisions from 2009 and 2010, and in all but the rarest of instances, it is impossible to contest abuses of eminent domain use because it seems that anything can be considered a “public use.”  See Goldstein v. N.Y. State Urban Dev. Corp., 13 N.Y.3d 511 (2009); Kaur v. N.Y. State Urban Dev. Corp., 15 N.Y.3d 235 (2010).

The article can be found here:

http://realestate.usnews.com/real-estate/articles/what-to-do-when-youre-a-homeownerthreatened-with-eminent-domain/

Posted in Advance Payments, Challenging condemnation, Eminent Domain, Lawyers
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