Eminent Domain – Frequently Asked Questions

What does the term “eminent domain” mean?

“Eminent domain” is the power of a governmental entity (such as a federal agency, state agency, city or county) or a private company acting under the authority of the government,  to take private property for a public purpose.

What is the government’s “condemnation power” over private property?

The government’s “condemnation power” is its ability to take all or a part of your property for a public purpose.  The legal proceedings for the government’s exercise of its condemnation powers are called “condemnation proceedings.”  Private entities, such as utility companies, can act under government authority to condemn property, as well.

How can the government take privately owned property?  Isn’t property ownership a constitutionally-protected right?

Property ownership is protected under the 5th Amendment of the United States Constitution; however, the government has the right to take private property for a public purpose, as long as the property owner receives just compensation.

Are eminent domain cases common in Texas?

As the Texas population grows and governments plan expansion projects to accommodate the growing population, governmental authorities increasingly exercise their eminent domain condemnation powers to take private property.  As a result, eminent domain cases have become increasingly common in Texas.  One of the biggest eminent domain threats facing Texas landowners today is the taking of land or easements for gas pipelines.

What are some examples of public works projects that result in eminent domain proceedings?

There are a wide variety of public works projects that can result in the condemnation of private property.  A few examples include:

  • Building new roadways or expanding existing ones
  • Running gas pipelines under a landowner’s property
  • Running water and sewer lines under a landowner’s property
  • Building or expanding rail lines and rail stations
  • Building ballparks, stadiums, sports and entertainment complexes
  • Building large commercial developments, like shopping malls
  • Creating water reservoirs or accessing surface or groundwater

How does the government decide whose property will be used for a public works project?

Government officials will authorize a land planning process in which regulatory officials, specialists such as engineers and environmental scientists, and others study the need for a public works project and determine the property needed for the project.  With input from the various specialists and the public, government officials will then make decisions about the project including timelines, costs, and the property to be taken for the project.

Don’t the landowners have a say in the government’s decision?

If a public works project is under consideration by a governmental entity, public meetings will typically be held at which citizens can voice their opinions.  Typically, once a project is proposed there is a time period allowed for public comment prior to a vote to undertake the project.  Government officials, however, have the final say over the project.

An affected landowner is further entitled to dispute the condemning authority’s power to take the property if it is not for a public use authorized by law.  The courts, however, define “public use” broadly, and Texas landowners often face an uphill battle when claiming that the taking of their land is unconstitutional or otherwise illegal.

How do property owners receive notice that the government is claiming eminent domain over their land?

At the time the landowner is notified of the government’s condemnation powers to take their property, they must by law receive a copy of the Texas Landowner’s Bill of Rights.  This document describes property owners’ rights and responsibilities as well as the condemnation proceedings.  Property owners are wise to seek legal advice as soon as they receive this notice, particularly because there are tight deadlines for the various stages of the condemnation process.  The lawyers at Allen Stewart, P.C. can help guide landowners through this process.

When the government claims eminent domain, does it typically purchase all of the property owners’ land or just a piece of it?

Depending of the nature of the project, the government or private entity might take an entire parcel of land, a portion of the land, or an easement, for example to run power lines or gas pipelines.

Doesn’t the government’s piecemeal purchase of property rights hurt the rest of the land’s value?

The government’s taking of a portion of your property or rights to your property can certainly affect the value of the remaining property.  This results in what is known as “damage to the remainder of the property.”  The cost of this damage can even be a lot more than the actual property the government is seeking to take.

For example, let’s say that you own a commercial business that sits at an intersection, and the government wants the piece of your property that runs along a busy road.  Losing that slice of property can have a dramatic impact on the value of your property as well as adversely affect the ability of your customers to access or even see your business from the main road, which in turn hurts your revenues.  The law provides that you should be compensated for such losses.  The lawyers at Allen Stewart, P.C. can help to ensure that such factors are considered in the valuation of your property.

Can a landowner prevent his or her property from being taken by the government?

You have the right to contest in court the government’s taking of your property if its intended purpose is not for a public use.  However, you should know that what constitutes a “public use” can be quite broad, and property owners often face a steep uphill battle when trying to prevent the taking of their property.  The attorneys at Allen Stewart, P.C. can help you decide whether you have a case for preventing the government from taking your property.

How does the government decide how much a landowner’s property is worth?

The government or private entity seeking to condemn your land will get an appraisal of the fair market value of your property.  Its initial offer will typically be based on this appraisal, and you are entitled to receive a copy of the appraisal.  Keep in mind, however, that appraisals are often a matter of opinion, and the entity’s appraisal may not take into account some important valuation factors.  For this reason, it is important for the property owner to consult an attorney for help with the valuation process.  The lawyers at Allen Stewart, P.C. can help you get an appraisal reflecting the true value of your property.

How does the landowner typically learn of the valuation?

The landowner will receive a purchase offer from the condemning authority along with a copy of the appraisal of their property.  The offer and appraisal may be presented to the landowner in person by a “land man,” a land acquisition agent representing the condemning authority who may try to “smooth talk” the landowner into taking the settlement right away.  The landowner’s better course of action in such circumstances is to secure the help of an attorney to review the offer and conduct an independent evaluation before deciding whether to accept the offer.  The attorneys at Allen Stewart, P.C. can help you with this.

How can a property owner know whether this valuation is fair?

Property valuation is not an exact science; it involves a certain amount of opinion, and the governmental entity’s appraisal of your property may not take certain factors into account.  The attorneys at Allen Stewart, P.C. can help you review the government entity’s valuation of your property and obtain an independent valuation, taking into account factors unique to your use and enjoyment of your property.

What if a property owner doesn’t accept the offer made by the land acquisition agent?

If the property owner does not accept the final offer made by the entity through the land acquisition agent, then the governmental entity will file a “Petition of Condemnation” in state court.  It is important for property owners to hire an attorney to help with this process in order to avoid any procedural pitfalls during the proceedings and to help present their best case for fair and just compensation.

Is it true that the government will sue a landowner who doesn’t accept the offer?  Isn’t that intimidating and expensive for the landowner?

It is an intimidating thought to be sued by the government to take your property, and it is not uncommon for the land acquisition agent when meeting face-to-face with property owners to raise the specter of a lawsuit as a tactic to encourage the property owners to accept the offer right away.  But remember, you have a constitutionally-protected right to fair and just compensation for your property.  Don’t let a land man talk you into accepting the purchase offer for your property without first consulting with an attorney.  The lawyers at Allen Stewart, P.C. can help you decide whether to accept the offer, make a counter offer, or have the valuation decided through legal proceedings.

Is it worth fighting the government’s valuation?  Is it common for landowners to achieve a settlement that’s better than the initial offer?

Of course, every case is different, and no lawyer can predict the results of a condemnation suit.  However, there have been many cases in which property owners have received much higher amounts of compensation—sometimes many times higher than the initial offer.  The lawyers at Allen Stewart, P.C. can help you decide whether you have a good case to contest the condemning entity’s valuation of your property and fight for a higher valuation through condemnation proceedings.

At what point should a landowner retain an attorney in an eminent domain case?

It is wise to consult with an attorney when you first receive notice that a government or private entity acting under governmental authority plans to take your property for a public purpose.   The lawyers at Allen Stewart, P.C. can help you through every step of the process to ultimately receive fair and just compensation for your property.

How do your attorney fees work?

The attorneys at Allen Stewart, P.C. only receive fees for our services if we get you more compensation than what the condemning authority offers you. We work on a “contingency fee” basis, meaning that our legal fee will be a percentage of the amount of compensation we achieve for you over and above the offer you received from the condemning authority.  We also handle the costs and expenses (such as securing an independent appraisal or hiring valuation experts) up-front, so that you have no out-of-pocket costs during the process.  We will be reimbursed those costs and expenses out of your portion of the final award.  If the final award is for an amount higher than the condemning authority’s final offer before filing the condemnation suit, then the costs and expenses of litigation might be assessed against the condemning authority.

Why should I hire Allen Stewart, P.C.?

Experience. Commitment. Passion. These three words describe the lawyers at Allen Stewart, P.C. and the qualities we bring to the negotiation table and the court room.  These three words are also reflected in the results we’ve accomplished for our clients and the personal attention we give every individual and company that we have the honor to represent.  We devote our experience, commitment and passion to the property owners we represent in helping to achieve for them the optimal value for their property in eminent domain proceedings.

Our commitment and passion are reflected in our track record: our individual attorneys enjoy an impressive list of honors and recognitions.  From Allen Stewart’s being named one of the Most Successful Young Litigators in America by The National Law Journal in 2002 to Steve Baughman Jensen’s receipt of the “Trial Lawyer of the Year” award in 2006 from the respected national public interest law firm Public Justice, our attorneys’ many achievements set us apart.

Additionally, Allen Stewart, P.C. attorney David Ritter brings to his representation of property owners a unique breadth of legal experience in eminent domain cases. David has over 11 years of legal experience and has represented both individuals and communities in cases involving groundwater contamination and occupational injuries.  In addition, David has also represented governmental entities, including a number of North Texas municipalities, in matters involving land use and eminent domain. At Allen Stewart, P.C., David devotes his practice to protecting the rights of landowners facing the taking of their property by governmental entities and utility companies, including the unprecedented increase of natural gas pipeline easement sought as a result of shale drilling.

By hiring the attorneys at Allen Stewart, P.C., you are doing more than retaining a law firm to represent you:  you are building a relationship with a close-knit team of professionals dedicated to achieving the justice you deserve.  We deeply value our relationships with our clients and the faith they have entrusted in us.  Our mission is to provide the highest-quality legal services we can while respecting the individual needs unique to each of our clients.

It is an honor to represent you, your family, or your business in your fight for just compensation.  We thank you for your confidence in Allen Stewart, P.C.