Receiving notice that the government may take part or all of your property can be stressful and confusing. Many property owners wonder whether they can stop the project, whether they must accept the first offer, and what happens if they disagree with the amount offered. The good news is that you do have rights, and the steps you take early can make a significant difference in the outcome of your case.
I. Save All the Documents You Are Given
Start by keeping all the documents the right-of-way agent or government representative gives you, including maps, offers, appraisals, business cards, and the like. Do not rely on memory. Make a file, digital, paper, or both, and keep every communication in one place.
II. Do Not Assume the First Offer Is the Final Word
The initial offer is usually based on the condemning authority’s appraisal or valuation. It is not necessarily the full value of your claim. The offer may not fully capture how the project impacts your property, such as loss of access, reduced parking, on-site traffic flow, changed visibility or exposure, drainage issues, or future development limitations. Before you sign an agreement and accept payment, it is critical that you understand exactly what you are giving up. You only get one chance to get just compensation for your property. You cannot come back later if things turn out different than they appear or than you were led to believe.
III. Identify What Is Being Taken
Not every taking is the same. The government may seek your entire property, but many times the government may take only a portion of your property (partial taking) or may take easements on your property, such as a permanent utility or drainage easement or temporary construction easements. The government may also take away access rights to the property. Each taking can affect value differently.
Ask these practical questions:
- What part of the property is being taken?
- What interests in the property has the condemnor taken? Has it taken ownership of a portion of the property and/or taken easements on other portions of the property?
- Is the taking permanent or temporary?
- Will driveways, parking, utilities, signs, landscaping, or buildings or other improvements be affected?
- Will the taking impact the existing use of the property, such as impacts to the operation of a business on the property? Will the taking impact future development of the property?
- Will the remaining property still function the way it did before?
These details matter because compensation in a partial taking is often about more than just the value of the property taken.
IV. Gather Your Own Information Early
Take photos and videos of the property before construction begins. Document entrances, parking areas, fences, landscaping, slopes, drainage, signs, utilities, and any buildings, other improvements, or business operations affected by the project. Keep tax records, surveys, leases, appraisals, repair records, development plans, and communications with tenants, lenders, or buyers. This information can help show the property’s condition and use before the taking.
V. Understand How Compensation Is Measured
North Carolina law measures compensation for a full taking by the fair market value of the property. In cases where the condemnors takes only part of the property, compensation is measured by the difference between the value of the entire property before the taking (including the value of any buildings or other improvements) and the value of whatever property is left after the taking (i.e., the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remainder immediately after the taking).
In plain English: the key question is often, “What was my property worth before, and what is it worth after?”
VII. Get Advice Before Making Final Decisions
Eminent domain is not a normal real estate sale. It is a forced sale, and often a forced sale of only part of the property. The burden of proof is on you, and you have only one chance to ensure you get the right price for what was taken and any damages to what you are left with after the taking. The condemning authority may have power to take the property, but that does not mean it gets to impose its value. An attorney experienced in condemnation matters can help evaluate the taking, help in pre-condemnation planning, preserve deadlines, coordinate appraisers or other experts, and pursue the full measure of justice in the form of just compensation that considers the full impact on your property.
When you receive notice, the most important thing is to act deliberately. Save documents, understand the taking, and get informed before signing anything final.
The firm is grateful to its summer clerk, Danika Huizinga, for her contributions to this article.
