What Compensation Am I Entitled To If The Government Wants Part Of My Property In California
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Under both the Federal and California Constitutions, the government has the power to take your property , if the land is needed for a public purpose. Whether your property has a building or is undeveloped land, it could be subject to this governmental power, which is called eminent domain.
Common projects for which the government uses its eminent domain power include:
- Public Transportation
- Police and Fire stations
Usually, it is not possible to stop the government from taking your property by eminent domain. However, you are entitled to compensation under California law. The reason you need an experienced eminent domain attorney is to make sure you get maximum compensation and damages for your property or business.
The Fifth Amendment to the U.S. Constitution and Article 1, Section 19 of the California Constitution guarantee landowners the right to compensation for their seized property. You also have the right to a jury trial to determine the amount of compensation and damages. The right to a jury trial is an important right to ensure you are treated fairly, even though eminent domain cases are typically settled before trial.
Possible Eminent Domain Compensation and Damages
There are several potential factors in determining rightful compensation for property seized under eminent domain:
What Does An Attorney Cost
A good eminent domain attorney should add value to your case. A contingency fee is the type of fee that pays an attorney based on the value that they add to your case. An hourly fee pays an attorney for the amount of time they spend on your case whether or not that time adds value. At Riddle & Brantley, we only charge a contingency fee on what we collect for you above and beyond the governments initial offer.
How To Seek Additional Compensation
Its not uncommon for the government’s initial offer to be less than what your property is worth. An experienced attorney will know how to evaluate the offer and negotiate for more. If you’ve already been what the government claims are fair market value for your property, you can still insist that you be paid more provided you havent signed away your right to do so. Thats why having an experienced attorney is so important.
What many people dont know is that while the case is pending, you have the right to spend the money youve been paid or do whatever else you want with it. Once youve been compensated, the money is yours and cannot be taken back by the government. This is especially helpful if youve lost your home and need financial support to relocate. Something else many landowners don’t know is that they may be able to seek additional compensation. If the government restricted what you could do with your property when it filed official plans and maps for the project, you may be able to file an “inverse condemnation” claim.
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Taking Action To Protect Your Property
In a typical inverse condemnation case, the property owner seeks to recover just compensation based on the governments possession or use of their property. In some states, property owners can recover their attorneys fees and other expenses as well. In cases involving regulatory takings, property owners may seek money damages, development or zoning permissions or simply may seek to have the offending regulations invalidated.
Inverse condemnation and regulatory takings cases can be quite complicated, particularly because the responsibility falls upon you, the affected landowner, to prove that a taking has occurred . The suit filed by the owner is inverse because it is brought by the property owner, not by the government agency having eminent domain power. This is why the property owner carries the burden of proof that property rights were acquired without the payment of compensation.
Inverse condemnation cases, however, can be won. Koontz v. St. Johns River Water Management District is an example of an inverse condemnation victory won by the property owners. More about the Koontz case here and here.
Does Eminent Domain Only Apply To Real Estate
While eminent domain is typically thought of as applying to real estate, it can technically be applied to any privately held property such as a car or your baseball card collection. However, as with real estate, the government would have to show a public use reason for taking your mint condition Honus Wagner rookie card.
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Who May Acquire My Land Using The Power Of Eminent Domain
The Utah Code authorizes certain entities with the power to condemn property. These entities include most governmental agencies and some private parties like utility companies and railroads. In all cases, a condemning party must condemn property for a public use and pay just compensation to the owner.
Legal Protections Within Eminent Domain Power
The concept of eminent domain predates the United Statess founding. Throughout European history, sovereigns have claimed the right to use any land within their borders. The American Constitution, written after the country escaped British monarchic rule, attempted to create some protections for citizens against government overreach.
To prevent the government from snatching privately held property, the Framers included the Fifth Amendment in the Bill of Rights, which provides that private property be taken for public use, without just compensation.
This has been interpreted to mean that the federal, state, or local government entity that wants to take a private persons land must offer to pay that person the reasonable market rate of the property. Put another way, the government cannot snatch land for free, or pay the owner only a nominal fee.
Different states have placed additional requirements on eminent domains use, even beyond this foundational constitutional protection.
The governments taking must be for a public use. Most commonly, this means that the government wants to build a road, school, or other public facility on that particular private parcel of land, or a portion of it. Courts tend to define public use broadly, to include government uses that would not necessarily be available to the entire public, such as a government office building or army base, or even urban renewal.
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The Government Says They Need Immediate Possession Of My Property Can They Do That And How Does It Work
In the event negotiations are not successful, the government will likely file a lawsuit seeking to condemn your property. Once that lawsuit is filed, the government can generally seek some form of what is often called immediate possession or a quick take of your property. In Colorado, for example, this is an expedited procedure in which the government can seek an order from the court to obtain possession to your property upon the deposit of an amount that the court is satisfied constitutes a reasonable estimate of the fair market value of the property to be taken. Many other states have similar procedures.
Contact Our Condemnation And Eminent Domain Attorneys
At Dickson Frohlich, our condemnation attorneys have extensive experience in representing clients involved in condemnation/eminent domain proceedings. Our attorneys have successfully represented clients throughout Seattle, Tacoma, and the Puget Sound Region in their various eminent domain matters.
If you or your business is involved in a condemnation proceeding, obtaining legal counsel to represent you is extremely important. Keep in mind that the governmental entity exercising eminent domain power over your property does not take into account your personal interests. With experienced legal counsel, the likelihood of your getting a greater amount of compensation for your property is far greater than if you were to proceed through a condemnation proceeding without legal representation.
At Dickson Frohlich our attorneys will work closely with you and will work diligently to protect your interests.
Call us today for a free and confidential consultation at 206-621-1110.
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Can I Contest A Government Seizure Of My Property
In some cases, resisting condemnation of property by the government is possible. An example of this would be how the plaintiff might seek to show that the condemnation of the property is unjust, or otherwise violates the law in some way. They may successfully do so if the new use would result in some gross injustice, or would violate public policy in some way.
Under these circumstances, the remedy generally involves an injunction. An injunction is a court order which requires termination of the project, as well as a reversion of the land back to the private owner. Alternatively, just compensation may be issued in the form of monetary compensation for the taking of the property.
Liens and tax-related seizures can be considerably difficult to contest, especially if the lien is the result of a clear ruling. Often, a ruling can be challenged if there was some error in the lower court, or if the challenge is based on some aspect of the title deed which could be clarified through a quiet title proceeding. Whether these options are available generally depend on the exact facts involved in each individual case.
Time Of Property Valuation
Another point a property owner may contest is the time of valuation. This can happen when the government unreasonably delays its acquisition of the property. At the same time, the government actions may substantially diminish the subject property’s value. For example, the government cannot buy up and condemn adjacent properties, destroy them or let them decay, and then lowball the remaining property owner once their own property value has fallen as a result.
The general rule is that the government does not have to compensate a property owner until it has taken his property or substantially impaired his ability to use it. The government may argue that it has not done so but the property owner can argue that the government’s actions have made the property all but useless in the real estate market.
Condemnation proceedings derive from the simple principle that the government may secure private property to benefit the public. Yet, because of the many property uses and volatile real estate market, condemnation proceedings can be complex. The valuation figure that the government reaches may differ from the landowner’s.
The eventual value may turn on the persuasiveness of the landowner’s appraiser. The property owner’s appraisal must also meet specific legal requirements. Fair value will be based on the extent of the property taken and an analysis of the many interests involved.
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What Are The Other Potential Impacts Of Property Seizure
Having part or all of your property seized can result in tax implications if you’re required to pay capital gains tax on the compensation you receive. Likewise, you may have to pay compensation to tenants if you rented out property that was seized through eminent domain. If you’re a renter, you may be displaced from your home which could affect you financially if you’re unable to find replacement housing at a similar price. On a larger scale, eminent domain can be abused if a property is seized without compensation being provided.
Native Americans And Land Seizures
Some of the earliest instances of eminent domain involved the seizure of tribal lands held by Native Americans beginning in the 1700s and continuing throughout the 1800s. Some of these seizures were conducted through military force, while others involved treaty agreements. One of the most well-known eminent domain events was the forcible removal and relocation of Cherokee from the southeast United States to what is now Oklahoma in the mid-1800s.
As part of a treaty agreement, the U.S. government agreed to pay the tribe $5 million along with compensation for houses and property. The treaty terms were rejected by the Cherokee, who refused to leave their lands. Under orders from then-President Martin Van Buren, members of the tribe were rounded up and forced to walk cross-country. The “Trail of Tears” resulted in the deaths of approximately 25% of the tribe.
Today, there are specific laws in place governing the use of eminent domain for the seizure of tribal lands. Federal law allows state governments to take allotments held by the United States in trust for individual tribal citizens when necessary for public use. For example, states can claim these allotments if needed to allow for a utility easement. But states cannot claim tribal lands outright under eminent domain.
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Government Taking Of Property
Could your real estate be taken from you? Under some circumstances, the short answer is yes. Eminent domain power allows a government entity to take private land for public use. Sometimes called the power of condemnation, or referred to as a “forced sale,” this is within the legal toolkit of federal, state, local, and even quasi-governmental agencies and public utilities.
While each jurisdiction has its own laws and procedures regarding the taking of private property, many of the broad concepts are the same across the United States.
How Long Does A Typical Eminent Domain Case Take
It depends on several factors. Many eminent domain cases are settled without the government having to file any documents with the court. These may be wrapped up in just a few weeks or months after the governments initial offer. A case that is more complex or that the government is stubborn on getting to the real amount of just compensation may take much longer than a year.
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Things The Bill Of Rights Says The Government Cannot Do
1. The government cannot make you believe in a religion.
2. The government cannot keep you from practicing any religion you choose.
3. The government cannot keep you from saying what you wish.
4. The government cannot keep you from writing what you want.
5. The government cannot stop you from publishing what you want.
6. The government cannot keep you from joining together peacefully with others to express your views.
7. The government cannot prevent you from complaining about what the government or others are doing to you.
11. The government cannot hold you in jail for a major crime without the knowledge and approval of your fellow citizens.
12. The government cannot try a person twice for the same crime.
13. The government cannot make you incriminate yourself.
14. The government cannot take away your life, liberty, or property without following the law.
15. The government cannot take your private property from you for public use unless it pays to you what your property is worth.
16. The government cannot hold you in jail for a long time without a trial if you are accused of having broken the law.
17. The government cannot deny to you a speedy trial with a jury of your fellow citizens.
18. The government cannot keep secret from you those who will speak against you.
19. The government cannot prevent you from having your personal attorney.
20. The government cannot keep you from having other people help you defend yourself in a courtroom.
Do I Need An Attorney If The Government Seized My Property
Because government taking and seizure can be broad and complex, it is advised that you work with an experienced and local real estate lawyer if you are experiencing government seizure. An attorney can help you understand your rights under your states specific eminent domain laws, and will also be able to represent you in court, as needed.
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What Will Happen First
The government will first try to acquire your property through voluntary negotiations. A government representative or their agent will likely contact you about the project and make one or more offers to purchase the property. You will likely receive formal letters which are sometimes called a notice of intent to acquire or initial offer letter and/or a final offer. These formal letters are important because they can set the bar for your ability to recover your attorneys fees and start a clock on the time that you have to obtain an appraisal at the expense of the government. If you do nothing in response to these formal letters, you may lose some of your rights.
What Is A Mortgage Discharge
A mortgage is a loan secured by property, such as a home. When you take out a mortgage, the lender registers an interest in, or a charge on, your property. This means the lender has a legal right to take your property. They can take your property if you dont respect the terms and conditions of your mortgage contract. This includes paying on time and maintaining your home.
When you pay off your mortgage and meet the terms and conditions of your mortgage contract, the lender doesnt automatically give up the rights to your property. There are steps you need to take. This process is called discharging a mortgage.
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Will I Be Reimbursed For My Attorneys Fees
Your instincts may tell you that the answer should be yes, but this is complicated and varies from state to state. You may be entitled to have the condemnor pay your attorneys fees. In Colorado, if the final award of just compensation is at least 130 percent of the final written offer the government gave you to voluntarily acquire your property prior to filing the condemnation lawsuit, the government must pay your reasonable attorneys fees. Many other states have similar mechanisms in place. For example, in California, the landowner may be awarded attorney fees if the court determines that the landowners final demand for compensation was reasonable and the governments final offer was unreasonable in light of the ultimate compensation awarded.
The Bottom Line: Eminent Domain Allows Public Good To Outweigh Private Property Rights With Due Process And Just Compensation
Eminent domain allows the government to take your property to be used for a public purpose as long as they pay you based on fair market value, referred to as just compensation. Meanwhile, inverse condemnation is when someone successfully sues the government because the harm from something being taken under public domain has hurt the value of their separate or remaining private property.
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