IT COULD HAPPEN TO YOU

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1 L A N D C O N D E M N AT I O N

2 IT COULD HAPPEN TO YOU Some state government agencies that commonly acquire land by condemnation in North Carolina include the North Carolina Department of Transportation (NCDOT) and the North Carolina Department Your land can be taken away from you. No matter who you are, your property is vulnerable to seizure. Whether you are a land owner, tenant, business owner, farmer, or have another interest in land, your land may be condemned. of Administration (NCDOA) on behalf of other state agencies. Private and local government condemnors can also take your real estate for public uses, such as the construction of: cell phone towers utility poles and cables PUBLIC W H AT I S E M I N E N T D O M A I N? pipelines railroads hospitals public housing The power to condemn privately owned property for public purpose, benefit, or use is known as eminent domain. The entity exercising that power is called the condemnor. W H O C A N C O N D E M N M Y P R O P E R T Y? State, federal, local city/county governments, and private businesses can take your land so long as they are able to show that: 1. the condemnation is for a public use or purpose, and 2. they pay you just compensation for the land that is taken. Just compensation means fair and reasonable compensation. Opinions on what is fair and reasonable often differ markedly. H O W W I L L I K N O W M Y P R O P E R T Y I S B E I N G C O N D E M N E D? You may first learn that your property is being taken for public use when: the project is announced in the media, a public hearing on the project is scheduled, an agent of the potential condemnor enters your land to conduct preliminary surveys or gather engineering or other data, you receive a notice of condemnation, or you notice that your property has been damaged or destroyed by a public taking, but you have never received any notice that your land would be condemned. 2 3

3 No matter how or when you learn that your property is being taken, it is important to seek legal counsel before taking any further action. Call our experienced trial attorneys immediately W H AT A R E M Y R I G H T S? If your property is condemned, you have the constitutional and statutory rights to: prevent condemnation if the taking of your land would not serve a public purpose, benefit, or use. be paid just compensation for the property taken from you. recover moving and related expenses, including replacement housing, relocation assistance, advisory services, and other srvices (subject to various limitations). W H AT S H O U L D I D O? 2. It is important to seek the assistance of counsel before you lose possession or ownership of the land so that an analysis of fair market value can be conducted while you still own and possess the land. 3. The earlier you obtain counsel, the sooner your lawyer will be in a position to protect your rights going forward. Steps you take without the benefit of legal advice may harm your ability to protect your rights. It s important to be aware of your rights and to have an experienced trial attorney on your side to protect your best interests. Visit our website ( to access checklists and guidance for property owners who are facing condemnation. W H AT N O T T O D O! There are many things you should not do before talking with an experienced trial attorney who can protect your rights. In order to protect your right to fair just compensation, we advise you not do any of the following before talking to counsel: Once you learn that your property is being taken or damaged for a public use project by any condemning agency, it is important to contact an experienced trial attorney as soon as possible. Here are a few of the reasons you should do so: 1. There are time limits for taking legal action, depending on who or what entity is condemning your land. 1. Do not discuss the value of your property with any government representative. NCDOT and NCDOA are legally required to attempt good faith negotiations with property owners prior to filing a condemnation lawsuit. Do not engage in negotiations with NCDOT or NCDOA agents yourself. Have the agents contact your eminent domain lawyer. 4 5

4 2. Do not discuss the property with government appraisers. 3. Do not have your land appraised by an appraiser unfamiliar with land condemnation appraisal. 4. Do not challenge the tax assessment of your property. 5. Do not attempt to obtain building permits, variances, zoning changes, subdivision approvals, or any other governmental approvals. Any information you provide may be used to justify condemnation and to reduce your compensation award. If you have already provided the information described above, make sure to tell your lawyer and provide him or her with any information or documents you have provided to the condemnor s agent or appraiser. Visit com for information about your rights as a property owner. of the date the affected property is taken or the completion of the project involving the taking, whichever is later. WHO PAYS THE COSTS OF THE CONDEMNATION PROCEEDING? Win or lose, the NCDOT/NCDOA pays all costs taxed by the Court. Under certain circumstances, these may include reasonable attorney, appraisal, and engineering fees. In an inverse condemnation action, the condemnor may be required to pay these costs. In local private or public condemnations, the Court has discretion to award the owner a sum in reimbursement for charges he/she has paid for appraisers, engineers, and plats, provided such appraisers or engineers testify as witnesses and such plats are received into evidence as exhibits by order of the Court. Under certain circumstances, including inverse condemnation actions against local condemnors, attorney fees may also be awarded. L A N D C O N D E M N AT I O N FA Q WHAT IS INVERSE CONDEMNATION? If your land is taken or harmed and you have not been served with a condemnation complaint or declaration, this is known as inverse condemnation. To obtain compensation for inverse condemnation, you must file your inverse condemnation complaint within 24 months WHAT IS PUBLIC PURPOSE, BENEFIT, OR USE? In 2005, the U.S. Supreme Court, through its controversial opinion Kelo v. City of New London, approved the condemnation of urban land to build commercial properties for the purpose of future economic development. The decision cited that the condemnation was for public benefit even though some of the land would not be open for public use (instead leased to private enterprises) and there was no guarantee that future economic development would occur. 6 7

5 WHAT IS A QUICK-TAKE PROCEDURE? A quick-take procedure is the right of some government agencies to acquire title and possession of a property as soon as they: 1. file a complaint and declaration of taking, and 2. deposit their estimate of just compensation for the taking with the Clerk of Court. For more on these topics, visit our website ( W E C A N H E L P In the state of North Carolina, there are few laws in place to protect property owners from unjust land condemnation. If your property is condemned or seized for public or commercial use, you need an attorney on your side fighting for your rights. L MED LAWMED At HensonFuerst, our experienced litigators will do everything we can to protect your property and to help you obtain just compensation for your property loss. Don t wait to get the help you need. Call today for a free evaluation. David Henson, Carma Henson, Thomas Henson Jr., and Anne Duvoisin 8 9

6 N O T E S

7 LAWL MED MED.com

6. The entity proposing to take your property must make a good faith offer to buy the property before it files a lawsuit to condemn the property.

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