When landowners are notified that the government intends to seize their property, they are often anxious about the legal process that lies ahead. The Odom Law regularly receives questions from concerned landowners about what is happening and what their rights are. In this space we will offer general answers to some of the most common questions we receive about eminent domain and the condemnation process. Because every case is different, these answers should not be considered legal advice about a specific matter. We encourage you to contact our law office for legal advice about your particular situation.
- What Is eminent domain? What is land condemnation?
- How does the state acquire my property?
- When will the condemnation process begin for my property?
- Can I prevent my land from being taken?
- What are my rights?
- What should I do if I think my land is going to be taken?
- Should I try to negotiate a settlement without an attorney first?
- When should I hire an attorney?
- What questions should I ask before hiring an attorney?
- What questions should I ask when my property is going through the eminent domain process?
- What experience does The Odom Firm have helping people who have faced the eminent domain process?
- How much will it cost me for The Odom Firm to be my lawyers?
- What is fair market value and how is it determined?
- How do I know if I am receiving a fair offer for my property?
- When will I receive my full compensation?
- Does the government have to pay me for my property?
- What if the government takes part of my property and that lowers the value of the rest of my property?
- What happens if I do not want to accept the offer from the NCDOT, government agency or other condemning authority?
- If the government’s eminent domain project obstructs the view from my property, can I get paid for that?
- If access to my property changes because of the taking, will I be paid for the loss of access?
- If the government creates a new road or highway that splits my property, am I entitled to payment?
- What Is inverse condemnation?
- Am I entitled to be paid for lost business profits?
- What do I do if the government is acquiring some of my parking area?
- Am I entitled to lost rent if my income-producing property is taken?
- As a tenant, am I entitled to any of my landlord's payment when a rental property is taken?
- What happens if I accept the deposit made with the complaint?
"Eminent domain" is the power of federal and state governments to take private property for public use. In some circumstances, this power can also be exercised by private companies acting under government authority.
"Land condemnation" is the exercise of a government's eminent domain power; in other words, it is the process by which the government acquires the land it needs from a private party.
Just like any buyer, the state has the ability to make an offer to purchase your property and negotiate for it. Unlike private buyers, the state doesn't have to walk away if you don't agree to sell or can't agree on a price. The state can invoke its power of eminent domain by filing a lawsuit to take your property. The state's lawsuit will not accuse you of wrongdoing; it just starts the legal process for taking your property.
The timing of the eminent domain process will, obviously, vary from project to project depending on the circumstances. In general, there are three phases to most projects that involve eminent domain: planning and design; acquisition of needed property or right-of-way; and construction. If you are concerned about a specific project that may affect your land, contact The Odom Firm. We strive to keep abreast of North Carolina projects and may be able to offer you some information.
The honest truth is that only in extreme circumstances can you prevent the taking of your property, but sometimes you can get the DOT’s engineers to modify the project plans. If you hire us before the project plans are finalized, this is something we can help you with.
It may seem like the government is holding all the cards, but you do have rights in an eminent domain case.
You have the right to be paid fairly for any land that is taken and for any reduction in the value of your remaining land as a result of the taking. Additionally, you have the right to have an experienced eminent domain attorney advocate for you.
This is risky. There are complicated and specific rules that govern the valuation of land in eminent domain cases, such as rules about the "highest and best use" of your property and various appraisal rules. The danger is that you could say something seemingly harmless that will negatively affect the value of the payment you are able to recover for your land. In many cases, your words or actions in negotiations may create a problem that is difficult or impossible to fix later. Since consulting with an attorney first carries no cost for you, you should definitely work with an attorney before negotiating with the government.
We recommend talking to an attorney once you suspect the government is interested in your land and hiring an attorney before the DOT does an appraisal of your property.
Again, many of your questions will be specific to your situation, but you might also ask your attorney the following:
- Should I talk to the government when they call or show up on my property?
- What should I avoid saying to government representatives?
- What will happen when the appraiser comes to my property?
- If I can't stop the government, can I get them to change the route or location of their project on my land?
- If my property is taken, how will it be valued?
- What kinds of payment am I entitled to?
- How can I get the most money possible for my land?
- What expenses should I expect?
- How will the government taking my property affect the property I have left?
- Is there anything I should do or avoid doing in order to protect my rights
- Will I incur any expenses in connection with the taking of my land?
Our eminent domain attorneys have nearly 100 years of combined experience representing North Carolina landowners in the eminent domain process. We represent landowners exclusively so that we never need to take a position in negotiations that is contrary to the interest of our clients. Not only are we experienced in eminent domain law, but we have also helped to shape North Carolina law in this area by our cases we have defended and prosecuted against the government including:
- Long v. City of Charlotte, 306 N.C. 187, 293 S.E. 2d 101 (1982)
- Department of Transportation v. Elm Land, 163 N.C. App. 257, 599 S.E. 2d 42 (2004)
- Department of Transportation v. Elm Land, 358 N.C. 542, 593 S.E.2d 131 (2004)
- City of Charlotte v. Hurlahe, 631 S.E. 2d 28 (N.C. App. 2006)
- City of Charlotte v. Combs, 719 S.E.2d 59 (N.C. App. 2011)
- City of Charlotte v. Williams, 707 S.E.2d 710 (N.C. App. 2011)
- Piedmont Natural Gas Company v. Kinlaw, 813 S.E.2d 642 (N.C. App. 2018)
The Odom Firm generally represents clients on a contingency basis, meaning we do not take an attorney fee unless we are successful in getting you more money for your land than the government originally offered you. To learn more, go to our How We Handle Fees page.
Fair market value is the price that a willing buyer of the property would pay to a willing seller. If the government wants to take your whole property, you are entitled to its fair market value, as determined by appraisal. If only part of the property is being taken, you are entitled to the difference between the fair market value of the whole property before the taking and the fair market value of the remaining land after the taking, taking into account any damage to the value of that remaining property by the condemnation of the other portion of the land.
The government or other condemning authority will have your property appraised, but you should not assume that their appraisal is accurate. Valuations of property may vary a great deal based on what the "highest and best use" of the property is considered to be.
You will want to have an independent appraiser evaluate the property. We recommend this be done with the assistance with one of our attorneys to ensure compliance with North Carolina’s rules.
It depends. If The Odom Firm helps you reach a settlement before the government or other condemning authority has to file a lawsuit, you will have the money soon after settlement. If the claim is not settled before an eminent domain lawsuit is filed, there will be legal proceedings in which The Odom Firm will file answers for you requesting full compensation and a jury trial.
In most cases, the government will deposit into the court its estimate of just compensation. We will attempt to get those funds immediately but will have to work with any lienholders. Receiving the deposit - your first check - does not take away your right to ask for more money. If you owe taxes on the property or there is a lien against the property, all or part of the money might have to go to pay those debts first. If in the course of the legal process, the court finds you are entitled to more money, you will receive that at a later date.
If the government needs your land for a public use or purpose, it can take it, but it must pay you. This requirement comes from the "Takings" Clause of the Fifth Amendment to the United States Constitution and from the “Law of the Land” Clause in Article I, Section 19 of the North Carolina Constitution.
The Fifth Amendment provides: "[N]or shall private property be taken for public use, without just compensation."
What if the Government Takes Part of My Property and that Lowers the Value of the Rest of My Property?
If the government only takes part of your property, the payment you receive should take into account any negative impact on the remaining property. For example, your remaining property may no longer comply with zoning ordinances, or you might not be able to use it for the purpose you originally acquired it for.
Often, the government underestimates the damages caused to your remaining property as a result of the taking.
If the Government's Eminent Domain Project Obstructs the View From My Property, Can I Get Paid for That?
If the loss of visibility due to a physical taking of your land, you may be able to get payment for the loss. If the loss is not caused by a physical taking, as a general rule it is much harder to get compensation. The law is still evolving in this area.
If the loss or change in access reduces the value of your remaining property, or limits it to a less profitable use than it could have been put to before the taking, you should be entitled to payment for the change in access.
If the taking makes use of your remaining land less valuable, then, yes, the government must pay you for that if you prove your case and damages.
When the government takes private property for public use without following the required condemnation process and paying the required compensation, the landowner can sue the government for the amount of the value they have lost. If you need to file a lawsuit for inverse condemnation, be aware that there is a statute of limitations, or time limit, by which you must file.
For most land, especially businesses, having sufficient parking is essential to being able to use your property as it was intended. Loss of parking due to condemnation of part of the property makes it difficult for businesses to continue operating, and the loss of value goes beyond the value of the land that was taken. Therefore, you may be eligible for payment from the government for this loss of value. This loss of land use also decreases the value of your property, therefore you should be compensated for this as well.
Generally, under North Carolina law you are not entitled to lost business profits or goodwill. In some situations, you may be entitled to relocation and re-establishment costs and expenses.
No, under North Carolina law you are not entitled to separate damages for lost rents. The rental income that your property produced, however, is a factor in determining just compensation.
The short answer is maybe. Whether you are entitled to any of the money your landlord obtains depends on the specific facts of your situation and often on the terms of your lease.
Yes. When the DOT files the lawsuit, they are required to deposit funds with the Clerk of Court according to North Carolina Law. The amount deposited is equivalent to their purchase offer.
This money will be paid either directly to you or be applied to your loan/mortgage. Receiving this money cannot be used against you in the lawsuit. Furthermore, our attorney fee is only based on the amount that we recover over this initial deposit.