Pre-Condemnation Planning for Landowners: A Property Owner Checklist

    By Mark A. Short, Eminent Domain

    We frequently get calls from landowners who have received a condemnation notice or who have learned that their property is about to be condemned. This checklist was prepared to assist landowners in obtaining fair compensation for their property taken and any damages to their remaining property.

    Everything you do or say may be used against you by the condemning authority. Your response to even preliminary overtures from government representatives may affect your case, so remember the following:

    1. Do not discuss the value of your property or any issue pertaining to the value of your property with any government representative until you retain experienced condemnation counsel. Be careful at public hearings about an upcoming project, which may be a good source of information for you, but your comments may be used against you if you comment favorably about a project to a government official.
    2. Do not have contact with government real estate appraisers. They are not interested in having you receive the highest possible value for your property. Any information given to them can be used against you.
    3. Do not attempt to value your property without the advice of a competent real estate appraiser who is familiar with condemnation. Your counsel should be able to help you.
    4. Do not contest your real estate tax assessment without first consulting your condemnation counsel. Your opinion of value can be used against you if, in the condemnation case, you assert a higher value.
    5. Do not supply copies of leases, expense records or similar documents to governmental representatives.
    6. Do not enter into contracts of sale that might attach a value to the property before a condemnation proceeding without first consulting your counsel.
    7. Be careful entering into leases and other agreements with tenants prior to a condemnation since it may reduce your award. Your counsel should be consulted on condemnation clauses contained within these documents.
    8. Do not permit the government to conduct any tests such as borings, exploration for hazardous waste, or test wells for water supply, unless counsel secures written agreement that copies of all test data and reports will be supplied to you.
    9. Owners are free to make any lawful use of their property, whether or not a condemnation is imminent, up to the time a taking occurs. Where it is practical and prudent, a rezoning, plat approval or building permit may result in a higher valuation for the property. You should not interrupt development plans because of a prospective condemnation. However, the fair market value of the property may not reflect any preliminary acts taken solely in anticipation of the taking.
    10. Do not attempt to obtain building permits, variances, zoning changes, subdivision approvals, curb cuts, or any other governmental approvals without consulting your counsel. A failed attempt to obtain such approvals can be very harmful to your case.
    11. If the local municipality refuses to issue permits necessary to make repairs, that should be fully documented because if the poor condition of the property at the time of trial is attributable to the municipality’s interference with proper maintenance, the negative impact will be disregarded because the fair market value may not reflect any diminution caused by the imminence of the condemnation, or any preliminary acts taken in anticipation of it.
    12. Continue to maintain the appearance and condition of the property. Do not defer maintenance of your property because of a potential taking since a neglected and poorly maintained property is likely to result in a lower condemnation award. Landscaping and curb appeal are important.
    13. Take photographs of your property before any condemnation blight sets in and before construction commences.
    14. Take pictures of the surrounding properties prior to demolition of earlier acquired structures and neglect by neighboring condemnee owners no longer interested in maintaining their properties or by the condemnor acquiring some of them and letting them sit vacant.
    15. Conduct sound recordings for partial takings to show the traffic noise level in the “before” condition compared with noise levels in the “after” condition.
    16. Title to property may need to be unified long before a condemnation becomes imminent and certainly before it is filed. That way, a taking of a part of the unified parcel (that causes severance damages to the remainder) will enable the owners to receive the full measure of those damages suffered by the remainder, without having damages arbitrarily reduced by virtue of how title to the various parts of the property was acquired over the years. Conversely, where the taking is likely to generate substantial enhancement to the remainder, it may be advisable to sever the land to be benefited and put it to different use or even sell the affected part of the parcel to avoid enhancement being used to offset damages to the remaining property.

    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.