PLANNING: WHY HIRE US NOW?
The world of eminent domain can greatly benefit the property and business owner or harshly treat the unprepared. The law is not always fair nor makes common sense. There are numerous nuances which, if unnoticed or unprepared for, can have a devastating effect on your award and a disastrous effect on the future of your land and business. Many attorneys avoid practicing eminent domain because of the special language and hidden mine fields which await the uninformed. My firm has exclusively practiced eminent domain for property and business owners since 1993. This is what we do every day.
Every property and business is unique and will suffer its own unique impact. Whether the impact is legally compensable is why pre-condemnation planning is so important. This is similar to estate planning where an owner’s hard-earned assets can either be paid to the government as estate taxes if ill prepared, or paid to the owner’s heirs if properly prepared. There are many pitfalls awaiting the ill prepared.
Here are a couple of sample illustrations: Mr. and Mrs. Smith own land upon which they operate a very profitable business as XYZ Corporation. The Smiths own 100% of the corporation. A government partial take destroys the profitable business costing the Smiths millions of dollars of future income. Unless the Smiths give their own XYZ corporation a lease, the business will receive little or no business damages. A simple lease with options to renew could literally result in the difference between recovering millions verses nothing for business damages. The Courts will compensate the properly prepared and punish the ill prepared. It’s not fair but it’s the law. Our firm will review and prepare whatever is necessary to protect your rights at no additional cost.
Another example is a land owner who owns a prime commercial corner and enters into a long-term lease to earn a secure cash flow at slightly below fair market value, with the idea of eventually selling the land in the future for full price once the lease terminates. The government takes the entire parcel. Under this scenario the tenant is considered to have ownership rights in the condemnation proceeds. In some cases, the tenant could actually walk away with sixty percent or more of the landowner’s eminent domain award. This risk can be completely eliminated by simply inserting a “Condemnation Clause” in the lease. Again, the ill-informed, kind-hearted land owner’s world can be turned upside down with the tenant taking the owner’s future retirement funds. Our firm will create the lease terms necessary to protect you. There are many more examples which may apply to you. Your case is unique and will receive specific individual planning by a team experienced in eminent domain law. Will a possible zoning change increase my recovery? What does highest and best use mean?
PRELIMINARY ENGINEERING AND DESIGN PHASE/ PUBLIC HEARINGS:
Prior to acquiring land by eminent domain, the government must consider alternative alignments and conduct public hearings. Road projects often include the construction of medians. This is the time to fight for your median cut. Many well-located properties are reduced to secondary locations due to the construction of a raised median which eliminates access. Our firm will research the proposed road features and work with the government to ensure that you receive the median cut when possible. Many times, the government will seek to alter the size and number of driveways prior to an eminent domain acquisition through an access management administrative process. Our firm represents our eminent domain clients to ensure that the greatest possible access is preserved. Failure to object to the driveway closures during this stage will eliminate your ability to claim damages for the loss of access when the eventual acquisition procedures begin.
The government must provide the property owner with a first offer to purchase the property sought to be acquired. The owner is entitled to review the government appraisal upon which the offer is based. In addition, the owner should have the benefit of understanding exactly what is being constructed and the impacts caused by the construction. A road project is three dimensional. There are many potential non-apparent damages which may result from a simple taking of a narrow strip of land. The construction may cause drainage problems, restrict access, and interfere with development potential to name a few. The uninformed owner may trust the pleasant government right of way agent who is not a trained engineer, and settle for what seems like a nice recovery, only to find out after the road is constructed that the property is wrecked and nearly worthless. Due to the trusting nature of the owner, he or she has literally signed their rights away and will suffer the consequences. In order to make informed decisions and protect your future, and to enjoy peace of mind that you are making the correct decision, an engineer must review the impact of the taking and construction project considering the current and future potential uses of the subject property. Our firm hires and works with highly trained professional engineers who specialize in evaluating impacts caused by government project acquisitions. The government is required to pay the expert fees. Why wouldn’t you want to be fully informed and make well researched, thoughtful decisions which will affect your future?
PERIOD OF NEGOTIATION:
Once the first offer is made, and after careful consideration of the facts, a property owner may decide to make a counter offer. Often the government will be willing to slightly increase their offer in order to settle a case. Every owner is different. Some need cash quickly and this may be a good time to settle the case. However, if you desire the greatest sum possible, it is often better to be patient and allow your skilled team of experts and attorneys time to thoroughly research and prepare your claim.