Can The Government Really Take My Property by Power of Eminent Domain?
Yes, by law, eminent domain is the right of the government to take private property for a public use. However, according to the 5th Amendment of the U.S. Constitution, private property cannot be taken for public use without the owner receiving payment of just compensation. In North Carolina, our state Constitution has been interpreted by the court to provide similar protections to private property owners.
In North Carolina, the laws related to the power of eminent domain state that your property can only be officially taken by the government’s filing of a petition in the county in which the property is located. The law further allows you, as a property owners, to act in own behalf or to can have an attorney represent you in a land condemnation or eminent domain action.
What should I do if I receive a notice that my property in North Carolina is being taken under the power of eminent domain?
If you have been notified that your property will be taken or affected by a taking, then you need to take action as soon as possible. It is prudent to seek the advice of an attorney experienced in property law and eminent domain issues. Here are some additional tips:
Don’t apply for zoning changes, building permits, variances, a tax valuation reduction are anything else that may affect the value of your property without first consulting with an attorney.
You are not required to give the government or their agents any information about your property, including appraisals, without speaking with an attorney.
During this process be sure to maintain the appearance and condition of your property.
Ask the government representative for any and all information regarding the project and its affect upon your property including a copy of the appraisal report used by the government, copies of public hearing maps, highway plans and cross sections.
If the government gives me an offer am I forced to accept it?
Be careful about what you say to a government agent. It will be in your best interest to get their offer in writing. Then tell the representative that you will fully research the situation and respond as soon as you are able. Consult with an attorney so you will understand the basis of their offer and the full impact of the taking on your remaining property before resolving your case.
What if I don’t agree on the value of their offer?
You are not obligated to take their initial offer. If you and the government are unable to agree on just compensation for the taking, then the government will file a lawsuit in the court in the county where the property is located. At that time it will be important for you to hire a qualified and experienced eminent domain or land condemnation attorney who can protect your property rights and help ensure you receive fair compensation for your property.
What if a lawsuit has been filed?
Once the lawsuit has been filed and served, you, as the property owner, have a set time period for answering the lawsuit. The case then proceeds to determine the ultimate resolution of all property issues that arise due to the taking and ultimately the final resolution regarding the amount of just compensation you will receive. It is important to consult an attorney because the process can be very complicated. It may include the hiring of experts, exchange of relevant documents and information, court hearings, settlement conference and a trial by 12 jurors to determine the amount of just compensation you will receive.
How much does it cost to hire an attorney to represent me in a North Carolina eminent domain dispute?
In most cases, there is no cost for the initial consultation with an eminent domain attorney. However, the issue of fees is completely between the property owner and the attorney so be sure and ask. In most eminent domain dispute cases, the attorney is usually paid on a contingency basis.
Under an agreement of this sort, the attorney’s fee are based on an agreed upon percentage of monies received over and above the last written offer received by the government or the amount deposited by the government upon the filing of a lawsuit. Other arrangements may include an attorney working on an hourly basis at an agreed upon set hourly fee or an attorney working on a flat fee basis.
If the eminent domain attorney is hired on a contingency basis, do I have to pay anything upfront?
If an attorney works on a contingency basis, then usually there are no upfront or on-going costs for legal fees. Legal fees are usually received when there is a monetary recovery over and above the last written offer by the government or the amount of monetary deposit by the government upon the filing of the lawsuit.
In addition to attorney’s feed, there are other costs that may be associated with the case including the hiring of appraisers, engineers, site planners, and other experts needed for the effective presentation of the case. These costs vary with the complexities and uniqueness associated with each individual case. An experienced attorney in eminent domain/land condemnation should be able to estimate and control these costs.