Condemnation

“Condemnation” or “Eminent Domain” refers to the taking of private property for a public purpose by a governmental agency. (As an example: the State wants to take your property to put in a roadway or widen an existing road.)

This is a right of qualified governmental agencies and limited private organizations with quasi-governmental authority. The taking can only be exercised for purposes, which constitute public use. There is not authority to proceed if the taking is not for a public use. A taking can extend from physically taking the property to also interfering with an owner’s right to use the property which diminishes its value. In other words, it contemplates not only a taking of the property, but also a damaging of the property.

If the taking or damages relates to a public purpose and is made by a qualified agency, the the property owner is entitled to just compensation.

Just compensation means the fair market value of the property at its highest and best use. In other words, if the property is zoned for residential and commercial, but is currently being used for residential purposes only, the appraisal is based on the use with the greatest value (which would probably be the commercial use).

The acquiring agency will ordinarily request immediate use and possession. Under certain circumstances, the property owner can be entitled to attorney’s fees and costs (including appraisal fees) if they agree to immediate possession and use. In addition, the agency will pay into Court at that time their current offer, which the owner can draw upon. The case is then set for trial to determine the actual just compensation figure.

When the case goes to trial it is commonly a “battle of the experts” to establish before the jury what the just compensation is concerning the property. The appraisers can rely on many factors, including comparable sales. It is the jury that makes the final decision, however. The owner may also testify regarding the value of the property.

Under some circumstances, a governmental agency may have “taken” or damaged property without bringing a condemnation action. Under some circumstances, the property owner can bring an action for “inverse condemnation” in which the property owner seeks to recover just compensation for a taking or damaging of their property.

In addition to the considerations for taking or damages, under some circumstances, the taking agency can provide relocation assistance. Under some circumstances, the Court can order the taking agency to pay the attorney’s fees and costs (including appraisal expenses) of the landowner.

Paul Sinnitt wrote the Real Property Desk book chapter for Condemnation for the Washington State Bar Association. Joe Sinnitt co-authored a recent update. If you need assistance, please give us a call.