Texas eminent domain law is highly complex. Faced with a condemnation action, landowners have many questions and concerns. In this article, we will answer some of the most frequently asked questions on eminent domain Texas. If you have any questions about the material covered in this article or you have questions that have not been addressed, please contact us at your convenience.
10 things to know about eminent domain and condemnation
- “Eminent domain” is a constitutional right that the government has to condemn property for a public use.
- “Condemnation” refers to the process in which the government seeks to take private property.
- Many people confuse condemnation with an action where the property is taken because it is deemed unsafe. Condemnation in eminent domain cases simply refers to the government exercising its right of eminent domain.
- The government is required under both the Federal and Texas Constitution to pay the landowner “just” or “adequate” compensation for the property taken.
- If the landowner is unwilling to accept the government’s offer for the property, both parties have the right to a formal hearing to determine the property’s value.
- The government can only take property for a public use. This term has been the subject of many years of litigation. But essentially public use means a public benefit. For example, roadways, parks, or schools.
- Private entities may have the right to exercise eminent domain if a project amounts to a public use. For example, an oil pipeline or power lines.
- The government is required to appraise your property to determine what its fair market value is. The government will then make an offer.
- You are not required to accept the government’s initial offer. If you reject the offer, the government will file a condemnation action. At the proceeding, you can present evidence regarding the fair market value of the property.
- It is possible to stop the government from condemning a property. These cases are rare and limited to instances where the government cannot show that the property is being taken for a legitimate public use.
Eminent Domain Texas: FAQ
What do the terms “eminent domain” and “condemnation” mean?
Eminent domain refers to a constitutional right that government entities and private organizations acting under the government’s authority have to take private property for public use. The act of taking the property is called condemnation. A condemnation action is a formal proceeding. The authority attempting to take private property must follow federal and state laws.
What are the constitutional bases for eminent domain power?
Texas eminent domain power arises under both the Federal and Texas Constitution. The Fifth Amendment of the U.S. Constitution states, “nor shall private property be taken for a public use, without just compensation.” The U.S. Supreme Court has interpreted this provision as a recognition of the government’s power to take private property for a public use. The government’s obligation to pay “just compensation” is meant to ensure that landowners receive what their land is worth. Article I, Section 17 of the Texas Constitution includes a similar provision. It states that landowners must receive “adequate compensation” when their property is “taken, damaged, or destroyed.” And Article I, Section 19 states that residents of the state cannot be deprived of their property without due process.
Why do governments and some entities delegated with power condemn property?
Many landowners that face a condemnation action ask, “Can you refuse eminent domain?” Landowners do have important rights and can fight a condemnation action. For example, if the government’s offer is below fair market value for the property. Or the taking is not for a public use. But landowners cannot outright refuse eminent domain. The outright refusal to sell or demanding an unreasonably high price are several reasons why governments and other entities commence a condemnation action.
Who has the power to seize private property?
Many people wonder whether the government has the power to seize private property. The short answer is yes. Government entities, including federal, state, county, municipal, and even school districts can exercise the right of eminent domain. Moreover, parties that are delegated with power by the government can condemn property under eminent domain Texas law.
What are some of the most common types of condemnation projects?
There are many different types of condemnation projects in Texas. For example, the construction or expansion of roadways, electric lines, oil pipelines, lakes, parks, and other public facilities. Eminent domain Texas border wall is also a concern among owners of property along the border.
What is the procedure for commencing a condemnation action in Texas?
Condemning authorities typically contact landowners on an informal basis to inform them of their planned project. Landowners may have an opportunity to offer input and participate in public hearings. But the formal process starts with the condemning authority making a formal declaration that it intends to take property for a public use and give notice to all landowners that are impacted. The authority then orders an appraisal which forms the basis for the “just compensation” that the landowner receives.
Does the government have to negotiate the price of the property?
The government will often try to negotiate a price for the property. They will likely deploy professional agents to landowners to trick them into accepting an offer that is below fair market value. Landowners have no obligation to negotiate with the government. If they do not present a fair offer they will be forced to file a condemnation action. The government must then send the landowner a Notice of Condemnation.
What happens if the landowner does not want to accept the condemning authority’s initial offer to purchase the property?
The government will formally file a condemnation action. This will lead to a hearing before special commissioners. Special commissioners are supposed to be disinterested property owners that live in the county where the action occurs. But since they have a financial interest (they are paid for their work) they often side with the condemning authority. The special commissioners will consider evidence regarding the property’s fair market value. If either party objects, then the case goes to the trial court and follows procedures that are similar to any civil case.
How do special commissioners determine damages?
Special commissioners consider evidence of the property’s fair market value. The condemning authority will hire a real estate appraiser to give a formal opinion of the value of the property. The landowner also has the right to hire an appraiser. If only a portion of the land is being condemned, the special commissioners will consider evidence regarding the damage to the remaining property after the taking occurs.
How can I fight an eminent domain case?
The first step in fighting an eminent domain case is to consult with an experienced Texas eminent domain lawyer. Your lawyer can advise you of your rights under Texas eminent domain law. Your lawyer may be able to argue that the condemnor lacks the authority to take property, that the taking is not for a public use, and/or that the proposed offer does not represent “just compensation” for the property.
What constitutes “just” and “adequate” compensation?
Most eminent domain Texas cases involve the issue of “just” or “adequate compensation.” The terms essentially mean the same thing. “Just compensation” is the term used by the U.S. Constitution. “Adequate compensation” is the term used by the Texas Constitution. Adequate compensation is essentially the fair market value of the property. This is what a third party would pay the landowner for the property if he or she was to sell it on the open market. But it also includes the damage to the remaining property if only a portion is taken.
5 questions you should ask a potential eminent domain Texas lawyer
Learning that the government seeks to condemn your property is extremely stressful and upsetting. The most important thing is to stay calm. You will likely want to consult with one or more Texas eminent domain lawyers to discuss your rights and options. During your initial consultation, be sure to ask the following questions:
#1 – Who will work on my case?
Many lawyers will assign cases to their associates, paralegals, or even contract attorneys. But you want the professional that is the most experienced in eminent domain Texas law to handle your case to ensure that you get the best possible representation.
#2 – Do you represent any condemning authorities?
Some lawyers represent both landowners and condemning authorities. This can lead to a conflict of interest that can negatively impact your case. Moreover, you want a Texas eminent domain lawyer that is committed to fighting for landowners’ rights.
#3 – Have you handled any cases that are similar to mine?
There are many different types of condemnation proceedings in Texas. Make sure that your lawyer has handled similar cases since there is no substitute for experience.
#4 – What have your past results been?
In addition to experience, you want a lawyer that has a proven history of successful outcomes in Texas eminent domain cases.
#5 – How can I reach you to discuss my case?
Eminent domain Texas cases can be complex. You will likely have many questions and require timely updates along the way. You want a lawyer that is available and responsive.
Conclusion
Texas eminent domain laws are highly complex. Landowners facing the prospect of losing some or all their land are under a lot of stress and fear the potential costs of hiring a lawyer to defend a condemnation action. Fortunately, many Texas eminent domain lawyers work on a contingency fee basis. This means that they only get paid if they settle or recover more than the government’s initial offer. If you learn that you may be facing an eminent domain action, it is important to consult with an experienced Texas eminent domain lawyer as early in the process as possible. This will ensure that your rights are protected and that you receive adequate compensation for your property. The lawyers at the Padua Law Firm have a proven track record of fighting for the rights of landowners throughout the state of Texas. Contact us today for a free consultation.
