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When The Condemnation Monster Comes To Visit

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By: Robert V. Kerrick

For at least the past 60 years, the entire Valley has been aware of the numerous and massive public projects constructed by a whole host of different governmental entities for a myriad of governmental public purposes.Obviously those projects required the acquisition--and in many case the condemnation--of private property.That was often very harsh, but this legal process continues today.

To the uninformed or inexperienced owner faced with the prospect of a governmental taking of his or her property, the question of what to do is often daunting.If a governmental agency and owner can reach an agreement on the purchase price of the property designated for the project, they open an escrow and finalize the acquisition.However, if an agreement cannot be struck, the owner must prepare to defend a condemnation lawsuit.That is when the "condemnation monster" rears its ugly head and the owner is hauled into court.

What should the owner then do?Clearly, the best advice is to seek an experienced condemnation lawyer.The "condemnation game" is very specialized and controlled by a number of confusing procedural and substantive rules and concepts.Together, they can severely intimidate and ultimately prejudice the owner's right to receive fair compensation for the property.

Obviously the overriding issue in condemnation litigation is the value of--or sometimes damages to--the property sought to be condemned.But in pursuing "just compensation," the owner needs to have a true understanding of many of the following:

• Date of valuation
• Highest and best use
• Larger parcel
• Methods of valuation
• Leasehold interests
• Access
• Easements
• Utilities
• Billboards
• Property taxes
• Relocation assistance
• Environmental issues
• Taxation of the condemnation award

Unless the parties can agree, the culmination of the condemnation process is a trial before a judge or jury.Even though the owner may testify as to the value of his or her property, a condemnation trial is essentially a "war of experts." And since value is a matter of opinion, there is the ever-present risk that a judge or jury may side with the opposing party's expert and adopt that expert's opinion on value or damages.This risk or uncertainty is what causes most cases to settle before trial.

Once the wave of human emotion passes after the owners find out that they are going to lose (involuntarily) a portion or all of their property to some governmental project, most owners logically conclude it would be foolish not to at least investigate their legal position in a potential or pending condemnation proceeding.However, only after consulting with a lawyer can an owner truly make informed, intelligent choices.If from such consultation the owner is convinced that he or she is entitled to greater compensation than is being offered by the government, then the owner may choose to litigate.As the lawsuit proceeds, experienced counsel will continue to encourage an honest, educated evaluation of both sides' positions.