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Real Estate and Eminent Domain Law

The world of real estate is becoming more and more complex. If you need help on any of the following subjects, please contact Harrington Law, P.C.:

Residential real estate sales
Zoning and land use
Property line disputes
Restrictive covenant disputes
Landlord / tenant disputes
Drafting leases
Eminent domain / condemnation

What is eminent domain?

Eminent Domain is the power of a governmental or quasi-governmental entity to force you, the landowner, to sell your property against your wishes. This process is usually called a "taking" even though the entity acquiring the property must pay you for the property it is acquiring.

Who has the power of eminent domain?

The federal government, the State of Indiana, cities and towns, utilities, railroads, parks, airport authorities and schools are all condemning authorities.

When can an entity exercise the power of eminent domain?

Anytime a condemning authority can show that it needs your property for a public purpose, it can acquire all or a portion of your property. Examples of situations where property can be taken are: the widening or construction of new roads; creation or expansion of airports; extension of electric, water, or sewer lines; expansion or creation of parks; and economic development.

What rights does a landowner have?

The Indiana and Federal Constitutions mandate that a landowner be paid "just compensation" for his property when it is taken for a public purpose. You have the right to challenge the power of the condemning authority to take your property and you have the right to have disinterested parties determine the fair market value of your property.

What is the process?

After a condemning authority decides to take your property, it will have an appraisal(s) completed to help it determine the fair market value of your property. It will then make an offer to purchase the land it needs. You can either accept or reject this offer. If you accept the offer, you will receive payment in return for a deed to the property. If you reject the offer, the condemning authority must file a Complaint for Appropriation with the court. If you do not believe the condemning authority has the power to take your property, you can challenge its authority by filing OBJECTIONS. It is the very rare case where a condemning authority does not have the legal right to take your property. In most instances, the case proceeds to the appointing of three appraisers by the judge. These three disinterested appraisers will report to the Court how much they believe you should be paid for your property. If both parties agree with the amount the appraisers' report, that will be the amount of money you receive. If either party disagrees with the appraisers' report, it will file EXCEPTIONS then the amount of "just compensation" will be determined by a jury at a trial.

What do you have a right to be compensated for?

You are entitled to payment for the fair market value of the land, land improvements, improvement, residue damages and temporary right of way. Land improvements are the actual value of trees, shrubs, flowers and your lawn. Improvements are the actual value of outbuildings, garages, houses, driveways, and sidewalks. Residue damages are awarded when the taking of a portion of your property decreases the value of the remainder. An example of a case when residue damages may be awarded is the widening of a road. The closer proximity of the road to the dwelling can make it worth less. Temporary right of way is the rental of a portion of your property while a project is being completed.

Why do you need a lawyer?

While your rights are grounded in the Constitution, the procedures for taking your property are found in statutes. If you miss a deadline for filing Exceptions or Objections, you will have forfeited your Constitutional Rights. In addition, a lawyer can help you negotiate with the condemning authority prior to suit being filed. Negotiations can encompass design changes to a project, saving trees or other valuable land improvements on your property, as well as the amount of just compensation. A lawyer can help you to understand what items you have a right to be paid for and what items for which you cannot be compensated.

The process of having your land taken can be a very emotional experience. You work hard for the land you own and it holds many dear memories. A lawyer can help you navigate through a very sterile process and protect your interests from the first offer to the jury verdict.