Indiana Eminent Domain Attorneys for Residential Landowners
When the government exercises its right of eminent domain and takes private land for public use, the impact is significant for residential landowners. After all, you aren’t given the opportunity to decline the taking of your property but that doesn’t mean you don’t have certain legal rights.
Having your property taken under the threat of eminent domain and the condemnation process can be very stressful for residential landowners. Residential landowners often believe that they can handle the situation on their own without the need for a lawyer, which is understandable. However, the government or taking agency’s attorneys are hired to pay you as little as possible as just compensation and they will do anything possible to reduce your recovery. Even if the government or taking agency agrees to pay you compensation in addition to its initial offer, you should be skeptical. Often times you could be leaving significantly more money on the table.
Homeowner Rights
Public and private land, even zoned residential, is subject to IC 32-24 eminent domain laws. The government can use the law to “take” your property for:
- Public use
- Highways
- Government buildings
- Pipelines
- Powerlines
- Other projects
Property owners can fight back against the process, challenging the government’s ability to acquire their land. Fighting back against eminent domain requires you to prove that the taking is not for public use.
Rapid action after receiving your notice is necessary because, chances are, the action has been years in the making, and the government will move quickly to acquire the land.
Home and property owners are up against the government. Don’t go into this fight alone.
Our lawyers will be more than happy to discuss the facts with you and fight on your behalf to seek the just compensation you deserve.
What Should Landowners Do After Receiving a Notice?
Landowners should contact a lawyer immediately after receiving a notice. You must know your rights and learn what the law and the U.S. Constitution offer you in terms of legal rights and protection.
A lawyer with experience in eminent domain cases will:
- Explain your rights to you. If you don’t know your rights, you can’t protect them.
- Negotiate with the buyer agent. The government’s buying agent’s job is to push you to accept the initial offer. Unfortunately, the offer is often low and not in your best interest to accept.
Eminent domain goes through a standard four stage process, outlined below.
4 Stages of Process
1. Project Design
Your property wasn’t chosen on a whim. Engineers were hired for a project that was already approved to identify properties that will be impacted by the project.
The engineer may decide that a portion of or your entire property is necessary for the projection’s completion.
2. Appraisal Process
After the engineer’s assessment is complete and your property has been listed as an integral part of the approved project. An appraiser is then hired to calculate the fair market value of your property.
3. Offer
A buying agent will contact you on behalf of the government to offer you compensation for the property in question. The agent’s job is to get you to agree to the offer, so you’ll be under immense pressure to say “yes.”
4. Dispute
Offers are often undervalued and not what the owner believes is fair value. You can dispute the offer and negotiate for just compensation. This is where a lawyer’s experience becomes invaluable.
Examples of Residential Eminent Domain
INDOT Claims Eminent Domain on Properties on US31
Indiana’s Department of Transportation’s project to make US 31 in Hamilton County safer is a prime example of residential eminent domain. Families in the area are being forced to sell their homes and move.
Homeowners allege little communication from INDOT, and while unhappy, many acknowledge that they’ll need to sell their homes due to the project.
Understanding Just Compensation
In cases of eminent domain, every residential property owner has a right to just compensation under the Fifth Amendment of the Constitution.
In simple terms, just compensation is the compensation paid by a condemning authority to place you – the property owner – in the same position as before the eminent domain process began.
Condemning authorities must offer fair market value for your property.
- If it is a full property taking, just compensation will be the full, fair market value of the property.
- If it is a partial property taking, just compensation will be the difference between the property value before and after the taking.
But what is considered “fair” to the condemning authority may not necessarily be the case.
Often, government-appointed appraisers will perform drive-by inspections and use tax appraisal data to calculate a property’s “fair” market value. The initial offer is, typically, a low one, and homeowners feel pressured to accept.
An experienced lawyer can help protect your right to just compensation and negotiate to secure a fair settlement.
Partial or whole taking of property through eminent domain action
The government or other taking agency may take all or only a portion of your residential property. You are entitled to just compensation for the taking either way. The issues can be pointedly different depending on whether it is a total or a partial taking.
With a total taking (the government is taking your entire property), the problem centers around the value of the entire property on the date of taking. There are no damages because no real estate remains. Residential landowners are entitled to relocation assistance and sometimes to a Housing Differential Payment. The Housing Differential Payment refers to the amount the government or taking agency agrees to pay you and the actual cost of a replacement dwelling. Relocation assistance and the Housing Differential Payment are confusing terms, and many lawyers who don’t regularly handle eminent domain matters fail to understand how these mechanisms work and are not as well equipped to help landowners.
A partial property taking may cause the remainder of your property to suffer residue or other damages. Partial takings can include something as simple as a strip off the front of your property for a road widening project; or they can be something more complicated, such as or a utility line easement running directly through your property or a roundabout being placed at the corner of your property causing serious damages and affecting your safety and accessibility to your residence.
Other factors to consider in eminent domain residential property taking
Residue damages could include a reduced value of your remaining land or a reduced value of your home or other structures located on your property. The category of other damages can include a wide variety of damages that may be suffered by virtue of the construction or the project. Appraisers hired by the government or taking agency will commonly underestimate or completely overlook residue and other damages to your property.
It is also important for some residential property owners to understand the meaning of “highest and best use”. Per the Dictionary of Real Estate Appraisal, the highest and best use of a property is “The reasonably probable and legal use of vacant land or an improved property, that is physically possible, appropriately supported, financially feasible, and that results in the highest value.” This effectively breaks down into four factors: 1) legally permissible; 2) physically possible; 3) financially feasible; and 4) maximally productive. Just because you may currently by using your property for residential purposes does not necessarily mean that its highest and best use is for residential use.
Under eminent domain, you are entitled to just compensation. However, it is important to know that you only have one bite at the apple. Once you settle with the government or taking agency, the transaction is complete. You will not be able to receive any additional compensation if some type of damage, issue or problem is later discovered. This is why it’s important for you to seek legal guidance or representation if you are faced with an eminent domain action to take your property.
Experienced Eminent Domain Litigation Lawyers
If you’re a residential property owner facing eminent domain taking, you may be feeling anxious and unsure of what steps to take. The idea of litigation may seem frightening, but in reality, most cases are settled outside of the courtroom.
Working with an experienced lawyer who understands eminent domain law is crucial. As a homeowner, you have the right to just compensation if your property is subject to eminent domain. Our lawyers can help determine the true fair market value of your property and fight to protect your rights.
You worked hard for your home and land. We’ll help protect your interests and guide you through the process, from the initial offer to the courtroom, if necessary.
Contact Cohen & Malad, LLP today for a case evaluation with an experienced eminent domain lawyer.
