Eminent Domain FAQ
What is eminent domain?
Eminent domain is the power to take private land to put to public use. When this power is used, it is often referred to as a “taking.”
Who has the power take my property?
The government and certain private entities (such as utility companies with condemnation power) can take private property so long as the taking will further some public use.
What is public use, and can my property be taken for a non-public use?
The Constitution of Virginia provides that “the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.”
The definition of “public use” can be a matter of debate, but it generally includes actions that are intended to provide a benefit to citizens. Public use can include any number of actions that may benefit the public in general. Most commonly, this involves acquiring land to build new government facilities, such as schools and libraries, and constructing means of transportation, such as roads and railways.
Your property cannot be condemned if the primary purpose of the condemnation is to further a non-public use. A taking is non-public under the Constitution of Virginia if it is mainly for “private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development,” unless the purpose is to rid the property of a public nuisance.
Who determines whether a condemning entity has the right to take my land?
Only judges can decide whether a taking is for a public use, and only judges can stop condemnation proceedings.
A condemning entity wants to take my land. What are my options?
Some landowners may choose to consent to the taking in exchange for payment. The landowner is owed just compensation for any land taken or damaged as a result of the condemnation.
Other landowners may elect to contest the taking in court. If the landowner prevails, the condemning authority cannot proceed with the taking, and the landowner will get to keep his or her property in its current state. Although the condemning authority has the burden to prove to a judge that a proposed taking is, in fact, for a public use, landowners contesting public purpose or the amount of land to be taken can face an uphill battle. However, landowners can always try to obtain more compensation for their condemned property.
What is just compensation, and how is it determined?
Under the Constitution of Virginia, just compensation is defined as “no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking.” If all of your property is taken, you will be paid the fair market value of that property. If only part of your property is taken, you will be paid the fair market value for the property taken, and you will also be compensated for other negative impacts, such as any decreases in value due to the taking.
How is the value of my property appraised, and what should I expect from appraisers?
Appraisers will assess the value of your property to determine just compensation. Although there are several common methods of appraisal, appraisers are more likely to use the sales comparison approach (also known as the market data approach). This assessment method is commonly used for single-family homes and land, and involves comparing your property with similar properties in the area that were recently sold.
It is important not to discuss the value of your property with any appraisers without consulting an eminent domain attorney. Appraisers may not have enough experience in the area of eminent domain, or they may not be as forthcoming about the true value of your property.
How will I be notified if my property will be condemned?
You might initially be alerted about a proposed condemnation proceeding from local news stories or citizen groups. You may also learn of a project and the lands affected if the government or other condemning authority provides notice in advance, such as with direct mailings and visits from representatives. The authority will likely hold a public hearing, where landowners can ask questions about the proposal, look over maps, and determine what property will be affected.
What will the condemning authority do before taking my property?
The condemning authority must provide detailed information about the proposed taking and any compensation offer. After making an offer for the property, the authority must file a petition for condemnation. The petition will state the reason for the taking and how it meets the public use requirement, a description of the property, and the work to be done.
Do I have to accept the compensation offer?
No, you do not have to accept the compensation offer. Landowners have the right to contest any offer, and many obtain their own appraisals after consulting an attorney. You have a right to contest compensation in court, although most cases do settle before trial.
Can the condemning authority enter my property to perform studies?
Yes, agents from the condemning authority may enter your property to perform studies and determine if your land will serve the purposes of the project. The landowner may either grant permission for the representative to enter, or the representative must obtain permission to enter. The agent must request permission by sending a certified letter no less than 15 days prior to the date or dates of the inspection, and listing what tests will be performed. If no permission is granted, the condemning entity must provide a Notice of Intent to enter, and must pay for any damages caused by the entry. The condemning authority does not need to obtain a court order as a prerequisite to entry.
What should I do before my property is condemned?
If your property will likely be subject to eminent domain, you should take action now to secure your property rights. Consulting an eminent domain attorney is the best course of action to ensure that your rights are protected.
During the condemnation process, DO:
Treat your property as you normally would, taking care to maintain it and keep it clean. Act as if you are planning to sell the property. Appearances matter to real estate professionals, especially since agents may inspect your property prior to condemnation proceedings.
Save all letters and other correspondence you receive.
Note the names of persons who have contacted you, the date they contacted you, and the subject of the conversation.
Attend public hearings to obtain more information.
Unless you have consulted an eminent domain attorney, DO NOT:
Make any substantial changes to your property, especially if there are zoning variances that have been grandfathered in.
Apply for any government permits.
Take any actions or make controversial statements at public hearings that could later be used against you in court.
File anything with the government, especially tax assessment appeals. Assessments do not accurately reflect the fair market value of your property, and these assessments cannot be used as evidence at trial unless the landowner has contested them.
Sign anything that could impact the value of your property. Especially try to avoid option agreements and signing away rights of early entry.
Enter into contracts of sale or do anything to jeopardize the legal status or ownership of your property.
Disclose the existence of any leases, contracts, or other offers on the property.
Make any changes or improvements to your land to increase its value in an attempt to obtain more compensation for your land.
– Alison Wrynn, Laura Hoey, Mark Short