You are the proud owner of what was once the family farm, only now your property is surrounded by commercial development and new suburbs. When the local government comes knocking to tell you it needs a strip of your property to widen the road running in front of it, what are your rights?
Just because the property has been in your family for a century does not protect you when the government decides taking that strip of land is for the greater good.
If you and the government can’t come to an agreement, the government can turn to a process called eminent domain. The law allows governments to buy private property, whether the owner agrees or not, if it’s for the public good.
It’s most commonly used for roads and other public facilities. Newer cases hold that eminent domain can also be used for economic development. The purpose is to convert private property for public use. It can be to build a bridge, a sand dune line, a public arena, for an oil pipeline or for a wall between Mexico and the United States.
Not every case requires an attorney, but eminent domain legal experts can help people navigate the process to ensure property owners get a fair shake.
“Rapidly evolving case law can dramatically change how eminent domain professionals deal with complex legal issues such as public purpose, necessity, property valuation, and full compensation,” according to the Association for Eminent Domain Professionals. “Eminent domain is a unique area of the law because it often involves a mixture of legal and engineering or appraisal questions.”
An eminent domain lawyer will advise you on how to best position your property to get its maximum value and, if necessary, advise you on how to determine your property’s value. If a government offer comes in too low, the government may be required to pay attorney fees.
In many instances that is the case, said Dan Biersdorf, a Minneapolis-based attorney who specializes in representing property owners in eminent domain cases. Biersdorf practices nationwide.
“We’ve obviously seen population shifts going to the south and southeast and southwest, so you are seeing to some degree new road systems going in by state departments of transportation,” he said. “Texas, Florida, the Carolinas have all seen an increase in road projects just because of population.”
In many cases, those projects require eminent domain to either realign an existing roadway or expand it, so many people who get that door knock will also be getting a wider road in front of their property.
Anthony DellaPelle, affiliated with the Owners Counsel of America, sees plenty of litigation on the Jersey Shore, where the government has been working since Hurricane Sandy to armor beaches to save property inland. Of the 125 active cases, four are his.
In one instance, a man who owned a $38 million oceanfront home was offered $750 by the state for half of his property, so the U.S. Army Corps of Engineers could build a 20-foot dune line on the beach. His home had survived the storm unscathed because it already had a dune line. No matter, the state wanted the land.
DellaPelle and his client opted for a jury trial and received $380,000, or 10% of the cost of his property.
In an earlier case, pre-Hurricane Sandy, the New Jersey Supreme court changed the 150-year-old eminent domain law to allow the state to determine if the taking would actually benefit the property owner. In such cases, the state could deduct the benefit cost from any taking. The state argued that the dune would protect the property from storms, thus, the low offer to DellaPelle’s client. The jury saw otherwise, since the property already had a 19.5-foot dune to protect it.
“That opened a new opportunity for the government of New Jersey and in every single case they have offered what we characterized as nominal damage, from $500 to $1,000 for nominal benefits,” DellaPelle said. “They have conceded in most cases there are damages, but they are outweighed by benefits.”
“In every state the government is required to act in good faith in negotiating acquisitions, so it doesn’t have to use eminent domain,” DellaPelle said. Because takings are involuntary, it may be the only type of circumstance where the party being sued did nothing wrong. In these cases, the defendant is the property owner. Because of that nuance and potential for unfairness, the law does require the government to act in good faith and make their best offer up front and engage in negotiations before filing eminent domain.
“The instances in which it works probably require not only fairness on the part of the government, but requires other circumstances to click,” DellaPelle said. “It’s not easy.”