A term that is unknown by most, but can affect lives in ways most citizens do not realize, is more commonly known as “condemnation”.
When a public entity is given the authority of eminent domain and it needs real property to further a public purpose, it may acquire that real property by condemnation.
Public purposes include such things as roads, schools, transmission lines, pipe lines, water wells, irrigation canals, street widening and parks.
The public entity has a right to take what it deems “necessary” to carry out the public purpose. It is rare when a property owner can successfully challenge the taking. However, the owner must be paid “just compensation” for the taking of the real property.
The owner is paid the fair market value of what real property is “taken,” and any decrease in value to the remainder of the parcel not taken. Payment for taking property was first recognized in the Magna Carta.
The public entity will first try to purchase the property. It will secure an appraisal for what is to be “taken” and what damage, if any, is sustained to the parcel remaining. The appraisal will be sent to the owner with an offer. Normally negotiations follow.
In the event an agreement cannot be reached, the public entity will file a lawsuit seeking to condemn the property. The first part of the case is a proceeding for the court to determine the taking is for a public use and is necessary. If the court finds that, an Order is entered letting the public body into possession to proceed with its project. A bond must first be posted. A trial to determine just compensation then follows. Some public entities that cannot get early possession, such as APS, must wait for a trial where just compensation is determined, usually by a jury. Once the Judgment is paid, the entity takes title. When a Judgment is entered after just compensation has been determined, and the judgment is paid, a Final Order of Condemnation is entered and title passes to the public body. Just compensation is usually determined by qualified appraisers. A property owner may testify about his opinion of value but, if an appraiser is hired, the owner should not testify.
If you become the subject of a condemnation action, a few things should be considered.
- Do not list for sale the property being sought by the public entity;
- Do not move or take any action you would not take if the threat to condemn had not been made;
- Be careful of negotiation where you state an opinion of value. If you were to testify, and you undervalued your property, it would be used against you;
- Consult an attorney with expertise on this specialized area of law; if for no other reason than to understand what is happening and what to do.
In Arizona, the owner does not get reimbursed attorney fees or expert fees such as appraiser fees. Before declaring war, consider the offer in light of this.
Our society as a whole benefits from public projects. However, when you are the subject of a taking for such a project, many owners feel it is not fair. Fairness, to the extent possible, can only be achieved by a calm, rational and informed response to the public entities’ actions to “take” the property. Attorneys who specialize can do a great deal to help you through this process.
If you have further questions about eminent domain, please call our office at 480-733-6800 and ask to speak with Douglas Zimmerman. Mr. Zimmerman, an AV Preeminent attorney has been selected as a Best Lawyer in America in 2014 and as a Best Lawyer in Arizona for 4 consecutive years. He is a litigator and transactional attorney focusing in eminent domain, real estate, and commercial litigation. He is a certified mediator by the Institute for Conflict Management and completed the Advanced Negotiation Skills Program at the Harvard Law School Negotiation Insight Initiative.