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Residential owners

How much your condemnation is worth

The most common question residential owners ask when seeking legal counsel is: “How much money is my Condemnation case worth?”

Our top-tier condemnation attorneys’ answer to that question is always: “You can’t tell by just looking at the initial information the Department of Transportation (or other entity) has given you. But I can help you find out.”

The reason for this is simple.  We’ve seen hundreds of “initial offer packages,” and these packages simply do not provide enough information from which to make an informed decision on value.  The majority of those “packages” include the booklet, “What Happens When Your Property Is Needed For A Transportation Facility;” a “Receipt for Brochure;” a “Statement of Estimated Values;” an “Owner’s Receipt of Plans & Explanation Acknowledgement;” an “Option for Right of Way;” and a “Right of Way Map” (usually attached to the “Option”).

First, the “Right of Way Map” shows only a two-dimensional drawing of the amount of fee simple land and easement area that the Department needs for its purposes.  To make an informed decision, in addition to what is shown on the Right of Way Map, you need to know, at a minimum: what the taking looks like in three dimensions, the proximity of the taking to improvements, the construction limits of the property and whether there are “cuts” and/or “fills” that affect you, the size and shape of drainage structures that may be discharging water onto your property, and slope and size of any adjustments being made to your driveway.

The good news is that the DOT has this information and will usually share it if you know what to ask for.  Nearly all of the information you need is contained in a thick set of plans (like the kind given to the construction contractor) called aptly, the “Construction Plans.”  Within these are the “Mainline Plan,” which looks like the “Right of Way Map” but has more detailed information; the “Profile” of the road, which shows any difference in elevation between the new and old road beds; the “Cross Sections,” which show the new road and new shoulders in three dimensions; the “Driveway Profile,” which shows the construction and slope of any changes to your driveway; and “Drainage Profiles,” which give the specifics of any new drainage pipes that may affect your property.   While having even all of these plans may not give you all the information you need, it almost certainly will make you better informed and give you a better starting point from which to negotiate with your Right of Way agent.

Beyond that, you need more information about the offer.  The State of Georgia’s Constitution requires any Condemning Authority to pay for both the value of land actually taken or used and any consequential damages to the remainder.  Before you can make an informed decision about the worth of your case, you need to know whether the Department’s offer includes money for both.  You also need to know things like: How did they arrive at the value?  What price per acre was used? What are the comparable sales that were used? Is there a “Cost to Cure”? Is any money being paid for a business operated on the property (if applicable)?  Like most things in life, it is only when you have all the best available information that you can make an informed decision.

And even once you have all of this information, it is still a good idea to get the property appraised by an independent appraiser with both experience in condemnation and experience testifying in court.  Over the years, I’ve learned that it is only after you have received all of the necessary information and have received an independent appraisal that you can answer the question more important than “How much is my case worth?” – and that is, “Has the Department of Transportation offered me enough money to settle?”

If Your Easement Worth a Fee

The most common follow-up questions we receive are related to the meaning of certain words that can be foreign to someone unfamiliar with the process. For example, terms of art like “right-of-way or fee,” and “temporary or permanent easement” carry significant meanings in eminent domain proceedings. But, a property owner may not know what those terms mean, or the significance that they carry, because such terms are not used in everyday contexts. Here are the differences between the most common ownership interests acquired by condemning authorities through eminent domain.

 First, “right-of-way” is normally the nomenclature used to describe that portion of land, which will be acquired in “fee simple absolute.” That phrase denotes the broadest level of ownership interest in the property that is being acquired. In other words, the land acquired in “right-of-way” or “fee” will belong to the condemning authority outright after the taking. The former property owner will retain no ownership interest to it whatsoever. For this reason, the compensation required for land acquired in “right-of-way” or “fee” is its fair market value as of the date it was, or is to be, acquired by the condemning authority. The phrase “fair market value” also means the price a willing buyer would pay, and, perhaps, more importantly, a willing seller would accept for the property in a situation where neither party is obligated to enter into the transaction.

Second, condemning authorities will also acquire easement rights in certain circumstances. The purposes for which an easement may be acquired can vary. But, the types of easement interests normally fall into one of two categories: permanent or temporary.

Permanent easement means that the condemning authority acquires certain rights to the property, but the property owner retains other rights. For example, the property owner still has the right (or obligation) to maintain the property acquired in permanent easement through such tasks as mowing the grass. The property owner also has to pay the taxes on the portion of property acquired in permanent easement. The condemning authority, however, has the right to use that portion of the property for the purposes it has acquired the easement for into perpetuity. For example, the easement may have been acquired for the purpose of installing drainage or utility infrastructure. As a result, the condemning authority has the right to make improvements to that infrastructure at any point. Normally, that means the property owner is prevented from placing any permanent improvements in the easement area that might interfere with this use, unless the condemning authority gives the property owner permission.

The effect of a permanent easement can vary. But, the compensation offered for the portion of land acquired in permanent easement is typically less than what is offered by the condemning authority for land acquired in right-of-way of fee. This is why the explanation of the initial offer package may specify that a discount rate of twenty-five to fifty percent is applied to the unit value of the land acquired in easement. For example, the compensation offered for 1,000 square feet of easement may be half of what the offered compensation was for 1,000 square feet of fee. In many circumstances, however, the practical effect of an easement acquisition is essentially the same as though the land were acquired in fee from the property owner’s perspective.

Easements can also be acquired temporarily. The most common scenario for this is when a driveway easement is taken so that the existing driveway can be replaced. Condemning authorities commonly do not want to pay for this type of property interest because, in their view, the value for the easement is compensated by the benefit of receiving a new entry point. But, there are other circumstances where temporary easement involves the exchange of a benefit exclusively to the condemning authority, which correspondingly means that the property owner must be paid for that type of acquisition. Since the property interest is acquired only temporarily, however, the discount rate applied to temporary easements can be as much as seventy-five percent of the fee value for the property.

The distinction between these types of property interests can be critical to understanding the offer made by a condemning authority. It can also be critical in understanding the effect such an acquisition can have on the remaining property that is not taken from the property owner. These distinctions can play an important role in the value of the compensation to which a property owner is entitled. For these reasons, it is important to understand them and to talk with an experienced eminent domain attorney about the implications of a proposed acquisition as soon as possible.

Smith, Welch, Webb & White, LLC.

is recognized as a premier law firm throughout the state of Georgia with expertise in this area of law. We have an uncompromising commitment to serving our clients and community. Our team of experts routinely handles a wide range of legal matters beyond just eminent domain and will be happy to provide outstanding service for you, your family, or business.

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Any representations regarding the law in this article is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the article publisher. The article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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