Eminent Domain - Frequently Asked Questions

What is eminent domain/condemnation?

Answer:  “Eminent Domain” or “Condemnation” is the power of government or its designees to take private property for public use.  Both the United States Constitution and the Virginia Constitution grant the government this power, but also restrict its use.  The main restrictions are that no person shall be deprived of property except for public use, and that just compensation must be paid. 

Does the Government or public utility have the right to take my property?

Answer:  Usually, but your property can only be taken for a public purpose and no more land may be taken than is needed for that purpose.  It is sometimes possible to challenge public purpose or to argue that the condemnor is taking too much land. However, it is ALWAYS possible to fight for just compensation.

Can the condemnor come onto my property to perform studies before they take the property?

Answer:  Yes.  The law allows a condemnor to study if a particular parcel of land is suitable for the intended public purpose.  The condemnor or its agents may enter with the landowner's permission OR by the following procedure. First, the condemnor must send a certified letter requesting permission to enter not less than 15 days prior to the first date of the proposed inspection, including the date or dates of such inspection, the name of the requesting entity, the purpose of the inspection, and the specific tests, examinations, etc., to be performed. If no permission is granted, the condemnor must then send, by certified mail and post on the entryway of the property, a Notice of Intent to Enter, also not less than 15 days before the proposed entry. The condemnor must pay for any actual damages caused by the entry, and a court proceeding is provided if there is a dispute. No prior court order is required for entry. We advise our clients to get an agreement on insurance, repair of any damage and delivery of a copy of any report produced.

If I know a condemnation is coming, what should I do now to get ready?

Answer:  First, treat the property as if you were getting ready to sell it. Keep it clean and well maintained. Save all letters and other papers you get about a possible condemnation. Consider whether any government approvals might add value, and pursue them in the ordinary course as if a condemnation is not coming. Most importantly DO NOT FILE ANY TAX APPEALS CLAIMING A LOW VALUE--they can be used against you. DON'T SIGN ANYTHING, especially a right of early entry or option agreement, without it first being reviewed by an attorney.

 What is just compensation?

Answer:  Just compensation is the constitutionally mandated standard which must be paid to any landowner whose property is taken. The Virginia Supreme Court has defined just compensation to mean "fair market value" of the property taken, plus the damage done to any property retained by the landowner in a partial taking.

How does a condemnation case get started?

Answer:  The condemnor must get an appraisal of the “just compensation” for the taking, give the landowner a copy of the appraisal, and offer the full amount of the appraisal.

Do I have to take the offer?

Answer:  No. Every landowner has the right to a trial by jury to determine just compensation. The reality is that most cases are settled before trial, but the landowner should get his or her own appraisal to see if the offer is fair.  Blankingship & Keith can then help you through the negotiation process. 

Who decides what my just compensation is?

Answer: Appraisers supported when necessary by civil engineers and other experts present their opinions about the value of the property taken and damaged. It may be no surprise that the condemnor’s appraisers usually put a low value on the compensation which is due.  If we are unable to settle your case, the question of value is decided at trial by a jury of people in your city or county who own some type of real estate. This is the ultimate protection for landowners built into Virginia law.

Are trials expensive?

Answer:  They can be, but we do all we can to minimize costs. At the very least, you will need to pay for an appraiser and possibly a civil engineer to determine the development potential of your property. Other experts may be needed, depending on the issues on each parcel. Recent cases handled by Blankingship & Keith have included environmental contamination, endangered species, Indian burial grounds, and limestone sink holes. Every piece of land is unique and must be evaluated based on its individual conditions and circumstances. Ultimately, we give you the best advice we can and YOU decide how much to spend on experts based on the potential return on that investment.

What about the cost of a lawyer?

Answer:  Blankingship & Keith usually takes cases on a contingency basis.  We get a percentage of the amount awarded over the original offer.  That means the landowner keeps the full amount of the offer made by the condemnor and legal fees are due only if we get you more compensation.  It is important to note that it is possible (but rare) that a jury will award you less than the original offer, but we will advise you about that risk if and when it occurs.

Are there ways to share the costs of the case?

Answer: Yes. Where there are a lot of people with similar issues, they can share costs they have in common. If there is a large project, such as a road, school or power line affecting a number of similarly situated landowners, it may be possible to share the cost of appraisers and other witnesses.

What if only part of my property is taken?

Answer: If only part of your property is taken, in addition to the fair market value of the portion taken, the condemnor must also pay for the damages caused to the portion of your property remaining after the take. This requires a complete analysis of every way in which the condemnation hurts the current use or foreseeable future use of your property. Examples of damages to the residue include cutting off road or utility access, creating an isolated or odd shaped lot, or making the current or future use of your property more expensive.

What if my home is taken?

Answer: The condemnor has to pay you fair market value for your home and, under the Virginia Relocation Assistance Act, they need to help you find comparable, decent, safe and sanitary housing and to pay your moving expenses. Your new home should be equal to or better than your old home and generally in a location equally or more desirable. Blankingship & Keith can help you through that process.