If you are wondering whether the government can take ownership of your property from you without your consent, the answer is yes. The theoretical underpinnings of eminent domain law revolve around the fact that public needs may be served the most when land has different ownership for a purpose that is supposed to benefit the public.
Unfortunately, you can end up being on the wrong side of that cost-benefit analysis when you learn that the government is trying to take your property. You must contact an eminent domain attorney immediately to represent you in any proceedings or litigation. At Savage, Royall & Sheheen, LLP, we’ve delivered results for clients in the form of multimillion-dollar verdicts at trial when the government was not following its legal obligations.
Please contact us to review your case.
What Is Eminent Domain?
You do not have the absolute property rights that you thought you did when you purchased or were given a plot of land. The United States Constitution allows the government to take your property under certain circumstances. Thus, your property rights are not absolute.
What is ironic is that the government’s ability to take your property is enshrined in the Constitution. Although the Constitution says that “nor shall private property be taken for public use, without just compensation,” essentially this means that the government can take your property if the proposed usage is valid and they pay you enough money. The Supreme Court said as much in 1876 when they used the Constitution to imply that the government had this power. Eminent domain was widely used as the nation’s railroad system was being built with few checks on the government.
Eminent Domain Is Very Controversial, but the Government Still Uses the Power
Eminent domain is an extremely controversial use of government power, especially in light of individual notions of the sanctity of your property rights. However, courts have affirmed and upheld the government’s rights to take property in countless instances over the years.
One of the most controversial eminent domain cases ever was the Supreme Court’s holding in Kelo v. New London which allowed the government to take blighted property in the name of economic development.
How the Government May Take Your Property
There are two ways that the government may try to take your property:
- Direct taking is when the government uses explicit action to take your property and ownership of it
- An inverse condemnation is when you have to take action to declare that your property was taken (even though you may still have ownership of it), so you can still get compensation
Either way, you may be forced into litigation that you did not choose, but now have to undertake to protect your rights.
The Eminent Domain Process in South Carolina
The government may try to negotiate with you when they want to take your land. Their first step will be to make you a formal offer to purchase your property.
There is a chance that you could reach an agreement with the government for the sale of your property. If selling is an acceptable course of action, you should reach an agreement with the government on price. That is not always easy because the government does not always want to pay you what you deserve.
The government has its appraiser valuing the property. They would function much like an insurance company adjuster, who always seems to reach a lower value. You should hire your appraiser, so you know how much your property is worth if you are going to sell.
If you will not sell to the government, they would need to file a lawsuit against you to initiate the condemnation process. Here is where you could challenge the taking itself or have the court determine fair market value for the property when the government assigns a lower value to your property.
What the Government Cannot Do in Eminent Domain
Although the government has the power to use eminent domain, there are some limits on its abilities. Namely:
- The taking must be for the public use.
- The government must pay landowners fair market value for their property.
Accordingly, there are two reasons why you would be able to sue the government in an eminent domain case:
- The government is taking the property for something that is not considered public use.
- They will not fairly compensate for your property.
You cannot expect that the government will act fairly in the eminent domain process. Local officeholders and officials may have their interests, and you are your rights are in their way. Sometimes, all you can do in your case is fight in court.
What Is “Public Use” in an Eminent Domain Case?
Generally, the term “public use” is interpreted relatively broadly in an eminent domain case. Although the government cannot do whatever it wants, it often seems like it can.
The Constitution does not define public use. Courts have filled in this definition through case law over the years. Accepted definitions are for “the public benefit” or the “public advantage.”
Usually, you would think of building highways or utilities as classic acceptable examples of public use. However, governments have tried to push the envelope over the years and have often gotten away with their conduct (as seen in the Kelo case).
South Carolina adopted its amendment to the state constitution in the wake of Kelo that barred the taking of blighted property for economic development — the exact fact pattern involved in Kelo.
There are cases when a court may draw a line and stop a taking when it is not for public use. In one case, Karesh v. City of Charleston, a court struck down the use of eminent domain to take land to build a convention center and a parking lot, stating that the project was more for the benefit of the developer than it was for the public.
In one of the major South Carolina cases, Riley v. Charleston Union Station, the South Carolina Supreme Court held that public use meant that “the public must have a definite and fixed use of the property, independent of the person or corporation taking title under condemnation.” Although it is rare to successfully fight the taking itself, this is one case where the court stopped the government from actually taking possession of the property.
South Carolina courts are often said to take a more narrow view of public use, but you are still fighting a tough battle for your ownership rights. If you are to have any chance of contesting the actual taking, you must have an attorney who has specific experience in eminent domain cases who can take the fight to the government.
Partial and Easement Takings of Your Land
Many people focus on the government taking over your entire parcel of land. In some cases, the government does not need all your property, nor do they want to pay you for it. They may want only part of your land.
The government must not only pay you for the portion of the land that they must take, but they must also compensate for the loss in value for the rest of the land that you still own.
Then, the government may want to use eminent domain to acquire an easement on your land.
This easement could be for utilities or access to somewhere else. Again, the government must pay you for the land that they are taking and for the diminution in value for the rest of your property.
You Must Be Paid Fair Market Value Under Eminent Domain
Generally, fair market value is what a willing buyer would pay a seller for their property. In theory, this measurement of compensation seems like it would make perfect sense. In practice, fair market value becomes very difficult to apply.
In many cases, you would need to negotiate with the government to get what you deserve for your land. The government acts as any negotiator would when they are offering you fair market value. They will start low and expect you to counter their offer to reach an agreement. The government rarely makes its best offer to you first.
Fair market value can be based on several valuations, including:
- Sales comparison to other comparable properties recently sold in the area (which could be subject to disagreement about what is comparable)
- Valuation based on the income that the property would have produced
- The cost to replace the property (and structures on it) less depreciation
In actuality, both sides would have their valuation experts testifying in a trial. First, you would need to select the relevant valuation that should be used (which could be disputed by the government). Then, you must apply the relevant valuation method.
There could be a wide disparity between your numbers and those of the government. Even if you were not able to stop the taking itself, many have successfully contested the government’s valuation of your property.
Property owners have forced the government to pay more, and over the decades, our team has represented many of them in the litigation process.
The Government Can Effectively Condemn Your Land Through its Actions
The government does not have to try to take your land to potentially owe you money. There are times when government action could deprive you of the use of your land.
In many ways, the government can determine how you can use your property. They have the power to pass laws and zoning regulations that can restrict your usage of your property. For there to be a regulatory taking, the government’s action must deprive you of all possible economic usage of your land.
The government may have a legitimate purpose and reason for its regulation. When it comes to compensating you for your land, it does not matter what the aim and intent were. All that is important is the effect that the regulation has on your ability to use your land.
Besides regulatory taking, the government may take your land because its actions have harmed your property. There could be a construction property next door that has flooded your property.
They could have trespassed on your land, permanently or temporarily. This type of taking is called de facto taking, and the government must still compensate you.
What to Do When Your Land Is Subject to a Taking
Most often, you will learn of the potential taking of your land through a letter. You may have already heard rumors that something was going to happen to your property. If you suspect or learn that your land will be the subject of eminent domain, you need legal help immediately.
The government can be as bad as any insurance company, despite your constitutional rights, the government may try to hide the ball or try to accept far less than you would otherwise deserve for your property.
In an eminent domain lawsuit, you are taking on the government. While some courts may be inclined to give some level of deference to the government, they do not get a blank check to do as they please. You can and should fight the government when your rights are being violated.
Your lawyer will determine the best legal strategy in your case, which could involve suing the government or actively defending against their lawsuit. You could also negotiate compensation, either before or after the case has gone to court.
Contact Our Eminent Domain Attorney in South Carolina Today
If any government action is either outright taking your property or is depriving you of its use, you can file a lawsuit. The law puts you on an even footing with what seems like the powerful government, giving you rights that your lawyer can fight for in court. Our attorneys at Savage, Royall & Sheheen, LLP, can take the government on for you, not allowing you to be pushed around in any way. Call our law firm today at 803-432-4391 or message us online to discuss your case.