What Is Eminent Domain?
“Eminent domain,” often called “condemnation,” is the legal process by which a public body (and certain private bodies, such as utility companies, railroads, redevelopment corporations and some others) are given the legal power to acquire private property for a use that has been declared to be public by constitution, statute or ordinance.
The “condemnor” is the public or private body having the legal power of eminent domain. The “condemnee” is the owner of the private property sought to be taken.
Under the United States and Missouri constitutions, private property may be taken by eminent domain so long as the taking is for a public purpose and the condemnor pays just compensation.
The “public purpose” is the use defined in the constitution, statute or ordinance. “Just compensation” is the “fair market value” of the property and any consequential damages. The “fair market value” is the current value of land and improvements, based on what price the property would bring if the owner did not have to sell and the buyer did not have to buy.
To use the power of eminent domain, the condemnor must be authorized, by statute or ordinance, to take the property for a specific public purpose. The condemnor must also try to buy the property from the property owner by good faith negotiation. The condemnor must make an unqualified offer to buy. Only after the condemnor and the property owner cannot agree may the condemnor bring the matter to local circuit court by filing a Petition in Eminent Domain.
Up to the time a petition is filed, the matter between the condemnor and the property owner does not involve any court action. However, the condemnor generally has employed, or has on staff, appraisers and attorneys. Property owners should seriously consider hiring an appraiser and attorney to give them an objective view of fair market value and to secure all their legal rights. These include the right to relocation benefits as provided by federal, state and municipal laws.
The petition must be served on the property owner and a date set for a hearing on the petition. At the hearing, the condemnor must prove to the judge (no jury is allowed at this stage) that it carried on good faith negotiations but was unable to agree on a price with the property owner. The condemnor must also prove to the judge that the property is to be taken by the condemnor for a public purpose as defined in the particular constitution, statute or ordinance.
After the judge has heard the evidence presented by the condemnor, and any objections by the property owner, the judge will decide whether the condemnor may proceed.
If so, the judge will appoint three disinterested property owners to be “condemnation commissioners.” They must view the property and they may interview the condemnor and the property owner. They may also hold informal hearings at which the condemnor and the property owner may present their opinions of value. Information supplied at this stage of the legal proceedings may not be used in later proceedings, which may include a jury trial to determine value.
The condemnation commissioners then give their opinion of the fair market value. This is known as the “award.” If the condemnor deposits the amount of the award into the court, the condemnor takes title to the property. The property owner may ask for distribution of the award to him, subject to payment of liens, mortgages, taxes or judgments, but may remain in possession of the property. After ten (10) days, the condemnor may ask the court to transfer possession and the court may allow no longer than ninety (90) days for the property owner to remain in possession.
After the award by the condemnation commissioners, both the condemnor and the property owner may file “exceptions” to the amount of the award if they disagree with the amount. These exceptions must be filed within ten (10) days after they receive notice from the court that the award has been made in a certain amount. In the exceptions, either party may ask for a trial by jury to decide the size of award. The jury hears the case without any information as to the amount of the award made by the condemnation commissioners.
As stated earlier, condemnors always employ lawyers, often even before beginning negotiations with property owners. These lawyers are employed either on a full-time basis or have represented the condemnor in a number of instances. They are generally very well versed in eminent domain law, including use of expert witnesses such as appraisers.
Property owners should employ lawyers to represent them at the proceedings because the matter before the court must be carried on as any other suit for damages. Attorneys who are experienced in representing property owners in eminent domain cases are available. The property owner’s general attorney should be asked whether he/she will handle the case and, if not, whether he/she can recommend one of more attorneys well-versed in this field.
Public-body condemnors hire lawyers to protect the public’s interest in preventing excessive awards. The property owner’s interest should also be protected, to make sure that fair market value is paid for the taking of the property and that all other damages caused to the property owner are compensated.
Reiboldt, K.M. – Roetzel & Andress, 75 East Market Street, Akron, OH 44308