Eminent Domain –
Can I Keep The Government Off My Property?

The government sent me notices that it plans to take my property to build a new road. Can I prevent the government from taking my property?

Sometimes. The landowner may convince the court system that the governmental entity (the condemnor) lacks condemnation power, that the taking is not for a “public use,” or that the condemnor has failed to comply with statutory and other legal requirements in attempting to take the property. It is important to consult with an attorney about the potential methods for preventing the condemnor’s action. But the main issue in most condemnation cases – whether the condemnor has provided “adequate compensation” for the taking – is not itself a valid basis for preventing a taking.

Do condemning authorities sometimes make lowball offers to acquire property through condemnation?

Yes. But landowners have the right to reject and contest low offers. The U.S. Constitution protects a property owner’s right to “just compensation” for condemned property; the Texas Constitution offers “adequate compensation.” Adequate compensation is generally considered to be fair market value, which is the price a willing buyer would pay to a willing seller. However, determining the correct amount of just compensation is often hotly contested by the parties and can be a slippery task (as evidenced by the wealth of Texas cases on the topic). For example, in many cases only a portion of the landowner’s property is taken via condemnation, but the government’s project causes a negative impact to the landowner’s remaining property. Condemnors often fail to offer compensation for damages to a landowner’s remaining property, even though Texas law allows the landowner to be compensated for both the portion of the property actually taken and the damage to the landowner’s remaining property. It is essential to have an experienced attorney and appraiser to ensure that adequate and just compensation is determined properly.

This article appears in November 20 • 2009.

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