Category Archives: Eminent Domain

Can the Government take Your Property? [What you need to know]


Sep 16 2019

Can the Government take Your Property? [What you need to know]

Condemnation, in simplest terms, is the acquisition of private property by a certain public or private entity for public use.

If you, as a landowner, are facing condemnation of your property, this concept may seem unjust and burdensome.

It may even seem like, for instance, the federal government and/or State of Texas and/or a local government can take ownership of your property simply because they want it.

This is not the case.

Fortunately, the authority that entities seeking to acquire land through condemnation does is not unlimited, and there are precise rules that must be followed in order to legally acquire property.

Moreover, if a federal, state, or private entity fails to adhere to these rules, then the property or its equivalent value must be returned to you.

 

Can the Government Take Your Property?

Can the Government Take Your Property? What right do they actually have? 

Under the concept of “eminent domain,” your property can be acquired for public use, meaning, that if the condemnation/=, or the taking of your property would serve to benefit the public in some form or fashion.

Example:  a city’s expanding of roads and access to utilities in  accommodation of an increasing population

In the above example the entity seeking to provide that public benefit can invoke the power of eminent domain to acquire all, or a part of your property.

To clarify, land that is acquired for the sale to a third party does not qualify as land acquired for “public use”.

To acquire your property, however, the government must provide you with fair and just compensation.

You, the landowner, are fundamentally entitled to this requirement.

For this reason, it is imperative to seek the counsel of an experienced eminent domain attorney to ensure that you are properly compensated.

 

A Brief History of the Fifth Amendment “Takings Clause” and Eminent Domain

The government derives its eminent domain powers through several sources. The concept dates back to the days before the United States became a sovereign country. In fact, the current Takings Clause of the U.S. Constitution is derived from the Magna Carta.

The Takings Clause was included in the Bill of Rights as the Fifth Amendment. Thomas Jefferson was concerned that the federal government would become too powerful and would simply take the land as it saw fit for its use. He included the Takings Clause as part of the Fifth Amendment, which reads that no person can “be deprived of life, liberty, property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fifth Amendment created a right to take private property for the government, but only if certain conditions were met.

The Texas Constitution, in Article 1, Section 17, also includes a Takings Clause that is similar in substance to the federal Constitution.

 

Defining “Just Compensation” as Part of Your Eminent Domain Rights

In order for the government to make a successful claim of eminent domain, it must provide “just compensation” for the taking. That process will generally involve the government employing its own appraisers and other experts to determine the value of the land.

Determining what constitutes just compensation can be complex, and the matter is further complicated in the case of partial condemnations. As a general rule, where an entire property is taken, the Government/Condemning Authority must pay the landowner an amount equal to the fair market value of said property (plus relocation costs in certain circumstances). Fair market value is generally the amount that the landowner could get if he or she were to sell the property to a third party who is a willing buyer in an arms-length transaction. In simplest terms, the price of the property if it were to sell in current market conditions. This value can be determined by using various valuation methods including, but not limited to, comparative market analysis and professional appraisal incorporating sales comparison approach, income approach, and replacement cost approach methods.

An appraisal to determine the fair market value will usually include variables such as:

  • The surrounding comparable properties;
  • The timing of the sale;
  • The type of property involved;
  • The condition of the property; and
  • Current use of the land (but also the highest and best use is considered as well)Current land values and construction costs
  • Local building codes and restrictions

It is not uncommon for the government’s appraisal value to be much lower than the property is actually worth, as the methods often implemented to value the property by the Condemning Authority or the government are sometimes tailored to fit its financial interests and, therefore, will present an inaccurate valuation of the property. Fortunately, you can rebut these appraisals with your own experts.

When challenging the just compensation requirement, it is imperative to have the assistance of an experienced eminent domain attorney. Not only can an attorney advise you of your rights, but he or she can assist you in maximizing your compensation. A lawyer will help you to prove that the property is worth its true fair market value and more than the Condemning Authority is offering or claims it to be worth and, in some cases, retain an experienced real estate appraiser, broker, or other experts to value your property both before and after the taking.

 

Examples of “Public Use”

The government cannot harm or take property unless it for public use. This definition is not as broad as you might think, but it still covers quite a few items. Public use examples commonly include the following:

  • Utility line expansion (oil, gas, water, etc.)
  • Creating new roads or expanding highways
  • Developing municipal infrastructure
  • Railway lines (or any other transportation services)
  • Creating parks, lakes, or other public recreational areas
  • Erecting public buildings
  • Building schools

In Texas, the government cannot generally take land if any of the following circumstances apply:

  • The land development would benefit a particular private party
  • The public-use is a mere pretext to benefit a private party
  • The project is solely for economic development

Things like community projects, sports complexes, and libraries are all considered generally valid reasons for the government taking property.

 

Take Action and Protect Your Property!

Take Action and Protect Your Property

Even though it may not seem like it in some situations, you still have rights if the government or any condemning authority notifies you that it plans to take your property. You can question everything about the process, from the procedure to the value of your property.

You can even bring an inverse condemnation claim against the government if it failed to follow the procedures set out by Texas law. You may be able to receive your property back, get money damages, or have zoning or other regulations that affect your property changed, depending on the circumstances.

You have rights under eminent domain proceedings, and an experienced Houston eminent domain attorney can help you assert them.

 

Contact Padua Law Firm for Eminent Domain Counsel Today

If you believe your property is being damaged or taken by the government without just compensation, you have rights. Let the  eminent domain attorney‘s at Padua Law Firm help you assert them. You can fight back against the government in many situations—and we can help. Call for a free consultation: 713-840-1411.

How to Fight Eminent Domain


Sep 06 2019

Both the economy and population in the State of Texas are booming. New homes and businesses require improved infrastructure. Development and infrastructure improvements require land. Unfortunately for property owners in Texas, that may include your land. Many landowners are unaware that Federal, State, local governments, and even private companies have the right to take private property for public use. This right is known as eminent domain.

Fortunately, you have legal rights to protect your interests when facing eminent domain actions.


What steps can I take to fight Eminent Domain in Texas?

  1. Say as little as possible to Government, State agency, or private entity¹ representatives when notified of an intent to take/purchase your property and/or acquire an easement;
  2. Determine the “public purpose” for the proposed use of the property and ascertain specific information regarding the taking;
  3. If there is both a public use and your property is needed, consult with an experienced eminent domain attorney to advise you of your rights and determine whether the proposed compensation is fair;
  4. Hiring or engaging a licensed appraiser or real estate broker may be necessary or beneficial to determine adequate and just compensation;
  5. Have your attorney negotiate with the Government, State agency, and/or private entity to reach a settlement and ensure that your rights and interests as a landowner are protected and preserved; and
  6. If a settlement is not possible, have your attorney contest the proposed compensation in court.

 

Consult with an Attorney

Consult with an Attorney

If you have received a Notice that your property will be taken from you through eminent domain, you need to contact an experienced eminent domain lawyer to represent you. Avoid communicating with any governmental entity or eminent domain authority directly, as any information that you provide could be used against you in future proceedings. Your attorney will help you to level the playing field and help you to identify possible legal challenges and contests in the eminent domain process, in an effort to ensure that you receive fair and just compensation for your property.

 

Know Your Eminent Domain Rights

Basis for Legal Challenges

The Government’s right to seize and convert land is not unlimited. While the power of eminent domain is evident, you, as a landowner, have important Constitutional and judicial rights to protect yourself and your property. Landowners in Texas are protected under both the U.S. Constitution and the Texas Constitution. The 5th Amendment of the U.S. Constitution states that land can only be taken for a “public use” and requires that the Federal Government provide landowners with “just compensation”. Similarly, the Texas Constitution requires that property owners be given “adequate compensation” when their property is “taken, damaged, or destroyed” for public use.

In addition to Constitutional Rights, the Federal and State Courts have imposed further limitations on the Government’s and other eminent domain entities’ power of eminent domain. A landowner’s ability to challenge an eminent domain action depends largely on challenging both the Government’s authority and the proposed compensation to be paid.

 

Common Defenses: How to Fight Eminent Domain

Common Defenses – How to Fight Eminent Domain

The following are some common defenses meant to highlight how to fight eminent domain in Texas:

        The Government Lacks a Sufficient Public Purpose for Condemnation

The “public purpose” requirement under the 5th Amendment of the Constitution has been subject to much litigation. As a general matter, a “public use” is one where the use of a private property will benefit the interests of the public. Litigation, and a basis for challenging an eminent domain action, typically arises where land is taken primarily for private purposes. The definition of what amounts to a public benefit has been broadened over the years through litigation. In the landmark case on the public use requirement, the Supreme Court held in Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), that general benefits which the community would enjoy from economic development were sufficient to constitute a public use.

The Kelo decision extended the definition of public use to for-profit development projects, allowing the Government to seize property for the purposes of allowing private developers to redevelop a portion of the city. Other examples of permissible public uses include expanding roadways, building schools, utilities, and even creating or expanding a pipeline route.  Pipeline cases are particularly common in Texas, with more and more landowners losing property to large oil companies.

While the definition of public use has been expanded over the years to include those that also involve private benefits, challenging an eminent domain action on the basis that the proposed use does not benefit the public can be a successful strategy.

        The Government Does Not Need to Condemn Your Property

Even where there exists a valid public use for the purposes of eminent domain, that does not imply that the condemnation is otherwise valid. The condemning authority will often attempt to carve out the most favorable route possible. For instance, consider an oil company proposing to run a pipeline through a much larger portion of your property than required. In such cases, it is possible to argue that the proposed use is arbitrary or capricious, and that your land (or a portion of your land) is not required.

        The Government Wants to Take Your Property Without Paying Just Compensation

For the majority of eminent domain cases, the most likely legal defense will focus on the just compensation requirement. The Constitution requires that the Government pay landowners “just” and “adequate” compensation for property that is taken. The Condemning Authority will often attempt to take a landowner’s property without paying just compensation. The primary reason: to save money. Often, the methods used to value the property by the Condemning Authority are tailored to fit its financial interests and, therefore, will present an inaccurate valuation of the property.

Determining what constitutes just compensation can be complex, and the matter is further complicated in the case of partial condemnations. As a general rule, where an entire property is taken, the Government/Condemning Authority must pay the landowner an amount equal to the fair market value of said property. Fair market value is the amount that the landowner could get if he or she were to sell the property to a third party. In simplest terms, the realistic price of the property if it were to sell in the current market conditions. This value can be determined by using various methods including, but not limited to, comparative market analysis and professional appraisal.

Where the Government/Condemning Authority is merely seizing a portion of the property (easement), just compensation also takes into account the difference between the fair market value of the property before it is taken and after it is taken. Such considerations are meant to account for any and all diminishments in the value of the remaining property. Consider, for instance, that a property previously unencumbered by existing pipeline easements is acquired by way of eminent domain to install a .50-mile-long section of pipeline. Once installed, the pipeline will cause the value of the entire property to diminish invariably due to a handful of associated risks that pipelines carrying crude oil, natural gas, volatile liquids, etc., carry with them, affecting not only potential buyer’s perception of the property, but the original condition of the property on the whole.

When challenging the just compensation requirement, it is imperative to have the assistance of an experienced eminent domain attorney. Not only can an attorney advise you of your rights, but he or she can assist you in maximizing your compensation. A lawyer will help you to argue that the property is worth more than the Condemning Authority is offering or claims it to be worth and, in some cases, retain an experienced real estate appraiser, broker, or other experts to value your property both before and after the taking.

Contact us today to discuss your rights or for questions about how to fight eminent domain in Texas.

What are the Pipeline Easement Rates in Texas?


Oct 18 2018

By:   Alejandro L. Padua,  Attorney

Head of Eminent Domain and Condemnation Practice

Padua Law Firm, PLLC

Pipeline Easement Rates in Texas

If a pipeline company has contacted you about installing and operating a pipeline across your property, there are many factors to consider before negotiating and granting the pipeline easement or right of way agreement. An easement generally gives the pipeline company a legal property interest in your property for a specific purpose, usually the construction, operation, and maintenance of the pipeline. Although not the only important term, a primary concern is the monetary compensation the company is offering you in exchange for the easement.  The going rate of a pipeline easement in Texas reflects many factors, each of which you should be aware of and incorporate into your analysis..

  1. Location – Location – Location: Very similar to the age old saying in the context of real estate investment, the location of your property is very important in your analysis. The county in which your property is located is one of the first considerations in determining the price of the pipeline easement.  Furthermore, the location of your particular property within the county where it is located is also of primary importance.  Similar transactions in your county should be analyzed and  researched to ensure that the pipeline easement payment is an accurate reflection of the market.  Please note, however, that even though pipeline easements are routinely bought and sold on the open market like any other real property transactions, many Courts around the country have rejected the price per rod of a pipeline easement as well as the price per linear foot of a pipeline easement valuation methods.    Because of this counter-intuitive law, litigation involving pipeline rights of way are many times focused on different valuation methods and arguments that only experienced counsel, with the help of retained expert appraisers, land planners, and engineers, can properly prosecute in Court.
  2. Size of the Pipeline Easement: Generally, the more land (usually measured in linear feet, rods, acres, or square feet) the pipeline company wants to use, the more it will have to pay you. In the typical market for transactions of utility easements between pipeline and utility companies, the easements or right of ways are valued on a per rod or per linear-foot basis. Unfortunately, not all pipeline companies use these customary valuation standards and as stated above, Courts have also rejected that valuation method.
  3. Current and Proposed Future Uses of Your Property: The current use of your property has a direct correlation with your property’s value. For example,  depending on whether it is commercial retail space, industrial, utility easement or corridor, farming, ranching, housing, etc., the value of your property, and therefore an easement thereon, will depend on this particular use. The value of an easement could also increase if your property could be developed into a particular use in the reasonably foreseeable future.
  4. Product and Pressure of the pipeline: The type of product (i.e. crude oil, natural gas, natural gas liquids, etc.) and pressure of the pipeline are directly correlated to the safety of the pipeline. Generally, the higher the pressure and/or more toxic the product that will be flowing through the pipeline, the higher the cost of the easement. Be sure to ask the pipeline company for this information, as it may not provide it voluntarily.
  5. Macroeconomic Market Conditions of the Energy Industry: Though the energy sector is known for its boom and bust market cycles, usually the pipeline company seeking to condemn a right of way on your land is usually in good economic standing. You should make sure that the pipeline easement rate offered to you properly reflects favorable energy market conditions and corresponding pipeline activity if they are present.
  6. Effect of the Easement on the Rest of Your Property: When only part of your land is subject to the easement, it is known as a partial taking. The industry standard for calculating the value owed to you as the property owner is to determine the difference between the market value of all your property before the taking and the market value of the remaining property after the taking. This analysis also includes an analysis as to whether the construction of the pipeline will interfere with any of the activities currently allowed on the property, whether there will be a loss of agriculture on the land, and/or whether there will be any above-ground appurtenances such as compressors or valve sites. Another important factor to consider is the targeting of your property for future utility lines, as it is more attractive for another pipeline or utility company to lay a new line on property with already-existing utility lines. In sum, the more the remainder of your property is negatively affected by the Easement, the more the pipeline company should compensate you.
  7. Legal Terms of the Right-of-Way Agreement or Pipeline Easement: The legal terms of the right-of-way agreement are a vital point of negotiation for pipeline easement payments. Though it may seem tedious and not as important as the compensation or price per rod paid, carefully reading through all provisions of the agreement will save you from future conflict with the pipeline company, protecting the value of your property, and generally assure your interests are permanently protected. Read through this legal guide on important provisions of a pipeline easement agreement to make sure your bases are covered.
  8. Competency of Your Legal Counsel: If you decide to engage legal counsel to negotiate a favorable rate for a pipeline easement on your property, be sure to research and engage attorneys who have experience and success negotiating with pipeline companies because this is usually a big factor. The pipeline easement attorneys at Padua Law Firm, PLLC have fought for numerous property owners across Texas and have a track record of significantly increasing compensation from pipeline companies as well as permanently protecting the property rights via the legal terms of the agreements. Our attorneys are well connected to other real estate professionals, appraisers, land planners, and engineers who know how to fairly and accurately value property and fight for the compensation you deserve.

Ultimately, determining the rate for a pipeline easement is property-specific, easement-specific, pipeline-specific, and involves the consideration of several factors.  The process can become a complicated. The pipeline company, because it is in their best interest, will inevitably fight to keep the rate as low as possible, while you as the property owner must do the opposite. Don’t let the pipeline company’s experience and usually superior bargaining power undermine the value of your property. A prudent landowner should contact an attorney experienced in easement negotiations before executing a pipeline easement agreement.  If you would like professional counsel to help you negotiate the best pipeline easement rates on your property, contact Padua Law Firm for a free consultation at 713-840-1411 or email at info@padualaw.com.

Important Notice to Property Owners Along Buffalo Bayou And The West Fork Of The San Jacinto River


Sep 13 2017

Important Notice to Property Owners Along Buffalo Bayou And The West Fork Of The San Jacinto River Who Were Damaged By Flooding – You Have Potential Inverse Condemnation Claims

If your home or business property was flooded (or the flooding levels and duration was significantly increased) due to the flood water releases from the Addicks and Barker reservoirs or the Lake Conroe Dam, you may be entitled to financial compensation from the responsible and appropriate governmental body.  Such financial compensation can be obtained through claims of “inverse condemnation” against such governmental bodies including:  the Federal Government, Harris County Flood Control District, the City of Houston, and the San Jacinto River Valley Authority, among others.

For Many Flooded Property Owners, Your Only Option May be to Pursue an Inverse Condemnation Claim.   We offer Free Case Consultations and Contingency Fee (No Fees Unless You Recover) Legal Representation.           

Call us at (713) 840-1411.

addicks-barker reservoir and its surrounding area

What is Inverse Condemnation?

The 5th Amendment of the United States Constitution and Article I, Section 17 of the Texas Constitution protect property owners from damages or “takings” of their property by requiring just compensation for their losses. Typically, the government or other private companies with eminent domain authority (such as utility or pipeline companies) take direct action to acquire property from private owners by negotiating a purchase or initiating the eminent domain proceedings whereby the fair value of the property being taken is agreed upon or decided through formal or informal proceedings, and such value is paid to the property owners.   In an “Inverse Condemnation,” the condemning authorities first “take” or damage property without compensating property owners.  A property owner in this situation is then forced to file an “inverse condemnation” lawsuit against the government or other condemning entity.   This is usually done through an experienced inverse condemnation attorney.

Eligibility to Recover Damages with an Inverse Condemnation Lawsuit

Eligibility for Inverse Condemnation lawsuit described above depends on many factors and must comprehensively be analyzed by experienced eminent domain attorneys.  The 2 major groups that may be entitled to compensation are those that suffered flooding resulting from the following controlled releases:

Addicks and Barker Reservoirs and Flood Water Releases

If your home or investment property is located downstream of the Addicks and Barker reservoirs along the applicable portions of Buffalo Bayou, AND sustained flood damage commencing on or after Monday August 28th, (or the flooding significantly increased on or after such date) then you may be eligible for compensation.

If your property is located upstream of the Addicks and Barker reservoirs, AND sustained flood damage from Hurricane Harvey, then you may be eligible for compensation.

Lake Conroe Dam and San Jacinto River Valley Authority Flood Water Releases

If your home or investment property is located downstream of the Lake Conroe Dam along the applicable portions of the San Jacinto River, AND sustained flood damage commencing after the deliberate and intentional release of water from Lake Conroe (or the flooding significantly increased after such release) by the San Jacinto River Valley Authority, then you may be eligible for compensation.

I Heard About a Class Action Lawsuit Filed.  Should I Join An Inverse Condemnation Class Action Lawsuit?

We believe that each potential claim of each individual client whose property has been damaged is unique and requires an independent legal analysis to properly answer this question.  While it is true that many law firms in the Houston area have filed class action lawsuits in both State and Federal Courts, you are under no obligation and absolutely no rush to join a class action lawsuit.   Furthermore, depending on the facts of your particular case, the proposed class action lawsuit, and the jurisdiction each was filed in, your case may be better litigated individually.  In other words, you get your own lawsuit.

CONTACT AN INVERSE CONDEMNATION LAW FIRM – WE ARE AVAILABLE TO PROVIDE MORE INFORMATION AND REVIEW YOUR CASE — CALL 713-840-1411 OR EMAIL US.

In short, the best course of action, is to contact an experienced inverse condemnation lawyer that will take a personalized and thorough legal analysis of your case.  We are available to provide more information regarding these matters and collaborate with various well-respected property and engineering experts as well as other law firms throughout the Houston area.