Frequently Asked Questions |
What is the difference between Condemnation and Eminent Domain?
Quite literally, “eminent domain” is the power of a government to take private property, while “condemnation” is the procedural process of confiscation of private property for a public use. In common use, the term “condemnation” is interchangeable with the term “eminent domain.” In short, condemnation is the act of confiscating a private property for a public use and is legally permissible through the power of eminent domain, so long as the government provides payment of just compensation to the Owner for the private land being seized.
What is a condemning authority?
A condemning authority (also called a “condemnor”) is an entity or agency that is granted the power of eminent domain. Because we are a constitutional system, and because the United States Constitution forbids the taking of private property without first paying just compensation, all authority first flows from the Constitution. Then, through amendments to the U.S. Constitution, power to condemn is vested in the individual states. Here in Arizona, all cities, counties, or state agencies, like the Arizona Department of Transportation, get their authority to take private property from the State Legislature. There are specific statutes that govern takings by cities or governmental agencies. A second example of a condemning authority is an entity that is not part of the State of Arizona, namely the Salt River Project, which has received a charter directly from the United States Congress. So, for SRP, their authority to take property also flows from the constitution, but comes by way of the United States Congress.
What steps must a condemning authority take to condemn my property?
Arizona Law requires a written offer to purchase, supported by an appraisal report, to be delivered, not less than twenty days before the initiation of any condemnation action. (Arizona Revised Statutes 12-1116(A))
What should I do if I receive a letter from a condemning authority?
First, determine what it is that the condemning authority seeks, that is, how much land or what bundle of rights is requested. Does the condemning authority seek a temporary construction easement? Is the condemning authority seeking land in fee (a full transfer of title), or are they merely seeking an easement for some particular purpose? If the condemning authority is seeking only a portion of your property and that taking will hurt the value of the rest of your property, does the offer include severance damages (compensation for the reduction in value)? First, you must analyze the letter from the condemning authority to determine what bundle of rights the condemning authority seeks. Then, you must ask yourself how to determine if the offer is high enough, and what to do if the offer is not high enough.
Can I fight a condemnation action?
Because no private property can be taken without just compensation having first been made, every citizen has a right to contest a condemnation filing. The contest can be approached on various levels. The right of the State or City to take the property may be reviewed and attacked, where appropriate. In most cases, the remaining issues for determination are the timing of transfer of possession of the property to the condemning authority and the amount of just compensation to be paid.
How long does the condemnation process take?
The condemnation process has various subparts. Usually, the condemnor is allowed immediate possession, and the property owner can receive the appraised amount pending litigation. If there is agreement between the owner and the condemnor about the property to be taken and the amount to be paid, the process can be completed in sixty to ninety days. If there is a dispute about just compensation, typically, the disputes are resolved within nine to eighteen calendar months, assuming no appeal of a trial court verdict.
If only a portion of my property is taken, what kind of benefits can I receive?
Often, public projects require only a portion of private property. In such cases, the taking of a portion of the private property causes damage not just for the portion taken, but damage to the remainder, which is typically called “severance damage.” Another type of damage may arise, called “cost to cure,” which is that cost necessary to put the private property back in the condition that it was in before the condemning authority took a portion.
Are expert witnesses necessary in every case?
Expert witnesses are typically required because the condemning authority starts the process with an expert appraisal report. Arizona Law requires an appraisal report to be delivered, supporting a written offer, twenty days before the initiation of any condemnation action. Because the burden of proof for just compensation purposes rests with the property owner, it is usually necessary for the property owner’s counsel to hire independent appraisal experts to provide just compensation opinions. There is nothing in Arizona law that requires the use of an expert witness, so in those cases where the property owner has intimate knowledge of the marketplace and real estate valuation techniques, an expert may be safely avoided. Typically, the owner testifies in addition to a professional appraiser.
What are the typical fees for a condemnation action?
Every fact pattern is different, but there are some generalities. For the most sophisticated owners of property, such as office buildings larger than 10,000 square feet or retail centers greater than 20,000 square feet, it is often sensible that legal fees to dispute just compensation should be calculated on an hourly basis, because that basis may result in the most economic resolution of the claim. However, in the great bulk of condemnation matters, this firm completes the work for a contingency fee of 1/3 of those sums achieved that are greater than the amount already offered by the condemning authority. In all cases, the property owner is responsible for the out-of-pocket costs necessary to prosecute the just compensation damage claims, including the expert witness fees.
Quite literally, “eminent domain” is the power of a government to take private property, while “condemnation” is the procedural process of confiscation of private property for a public use. In common use, the term “condemnation” is interchangeable with the term “eminent domain.” In short, condemnation is the act of confiscating a private property for a public use and is legally permissible through the power of eminent domain, so long as the government provides payment of just compensation to the Owner for the private land being seized.
What is a condemning authority?
A condemning authority (also called a “condemnor”) is an entity or agency that is granted the power of eminent domain. Because we are a constitutional system, and because the United States Constitution forbids the taking of private property without first paying just compensation, all authority first flows from the Constitution. Then, through amendments to the U.S. Constitution, power to condemn is vested in the individual states. Here in Arizona, all cities, counties, or state agencies, like the Arizona Department of Transportation, get their authority to take private property from the State Legislature. There are specific statutes that govern takings by cities or governmental agencies. A second example of a condemning authority is an entity that is not part of the State of Arizona, namely the Salt River Project, which has received a charter directly from the United States Congress. So, for SRP, their authority to take property also flows from the constitution, but comes by way of the United States Congress.
What steps must a condemning authority take to condemn my property?
Arizona Law requires a written offer to purchase, supported by an appraisal report, to be delivered, not less than twenty days before the initiation of any condemnation action. (Arizona Revised Statutes 12-1116(A))
What should I do if I receive a letter from a condemning authority?
First, determine what it is that the condemning authority seeks, that is, how much land or what bundle of rights is requested. Does the condemning authority seek a temporary construction easement? Is the condemning authority seeking land in fee (a full transfer of title), or are they merely seeking an easement for some particular purpose? If the condemning authority is seeking only a portion of your property and that taking will hurt the value of the rest of your property, does the offer include severance damages (compensation for the reduction in value)? First, you must analyze the letter from the condemning authority to determine what bundle of rights the condemning authority seeks. Then, you must ask yourself how to determine if the offer is high enough, and what to do if the offer is not high enough.
Can I fight a condemnation action?
Because no private property can be taken without just compensation having first been made, every citizen has a right to contest a condemnation filing. The contest can be approached on various levels. The right of the State or City to take the property may be reviewed and attacked, where appropriate. In most cases, the remaining issues for determination are the timing of transfer of possession of the property to the condemning authority and the amount of just compensation to be paid.
How long does the condemnation process take?
The condemnation process has various subparts. Usually, the condemnor is allowed immediate possession, and the property owner can receive the appraised amount pending litigation. If there is agreement between the owner and the condemnor about the property to be taken and the amount to be paid, the process can be completed in sixty to ninety days. If there is a dispute about just compensation, typically, the disputes are resolved within nine to eighteen calendar months, assuming no appeal of a trial court verdict.
If only a portion of my property is taken, what kind of benefits can I receive?
Often, public projects require only a portion of private property. In such cases, the taking of a portion of the private property causes damage not just for the portion taken, but damage to the remainder, which is typically called “severance damage.” Another type of damage may arise, called “cost to cure,” which is that cost necessary to put the private property back in the condition that it was in before the condemning authority took a portion.
Are expert witnesses necessary in every case?
Expert witnesses are typically required because the condemning authority starts the process with an expert appraisal report. Arizona Law requires an appraisal report to be delivered, supporting a written offer, twenty days before the initiation of any condemnation action. Because the burden of proof for just compensation purposes rests with the property owner, it is usually necessary for the property owner’s counsel to hire independent appraisal experts to provide just compensation opinions. There is nothing in Arizona law that requires the use of an expert witness, so in those cases where the property owner has intimate knowledge of the marketplace and real estate valuation techniques, an expert may be safely avoided. Typically, the owner testifies in addition to a professional appraiser.
What are the typical fees for a condemnation action?
Every fact pattern is different, but there are some generalities. For the most sophisticated owners of property, such as office buildings larger than 10,000 square feet or retail centers greater than 20,000 square feet, it is often sensible that legal fees to dispute just compensation should be calculated on an hourly basis, because that basis may result in the most economic resolution of the claim. However, in the great bulk of condemnation matters, this firm completes the work for a contingency fee of 1/3 of those sums achieved that are greater than the amount already offered by the condemning authority. In all cases, the property owner is responsible for the out-of-pocket costs necessary to prosecute the just compensation damage claims, including the expert witness fees.