You likely have many questions if this is your first time dealing with someone trying to take your land by eminent domain. Hopefully, by the time you have read this pamphlet, you will have a better understanding of what is going on.
Can they just take my land?
Texas law allows for the government and certain private companies to take private land so long as it is put to a public use and adequate compensation is paid. These entities are called condemnors in the eminent domain context. While public use is not consistently defined, courts have given us examples of what is and is not considered public use. The courts have always allowed the Texas Department of Transportation to take property to build or expand a road. Likewise, courts have allowed counties and cities to do the same.
In certain instances, Texas law allows for corporations and other non-government entities to use eminent domain. Texas law allows for electric companies, electric cooperatives, pipelines, gas companies, telephone and internet companies, water supply companies, medical facilities, railroad companies, and others to use the power of eminent domain. Courts typically apply a stricter scrutiny when a corporation uses the power of eminent domain. Texas Courts will not allow a corporation to use eminent domain if the use of eminent domain would solely benefit that corporation. For example, a company could not use eminent domain to build a pipeline connecting one of its facilities to another.
Do they have to pay for my land?
Texas and Federal laws require anyone using eminent domain to pay a fair value to acquire the property. The Takings Clause of the 5th Amendment to the United States Constitution states “Nor shall private property be taken for public use, without just compensation.” The Texas Constitution states, “No person’s property shall be taken, damaged, or destroyed, or applied to public use without adequate compensation being made.”
What is adequate compensation?
Texas courts have determined adequate compensation to be the market value of the land being acquired. Further, Texas courts have defined market value to be the price the land would bring in a sale between a willing seller and buyer. Adequate compensation becomes a hotly contested issue in many eminent domain cases.
The government and corporations hire appraisers who are strongly incentivized to determine a low value for your property. If an appraiser produces consistently high values, the condemnor will stop hiring that appraiser, even if they are correct. Further, condemnors usually condemn hundreds of properties at a time, leaving their appraisers to not consider unique features of your property. When questioned at a hearing, the condemnor’s appraiser often does not even remember an individual’s property because they might have done over 100 appraisals on this one project alone. Condemnors also use old appraisals that do not usually reflect the most current market trends. Unsurprisingly, their appraisals fail to consider the rising cost of real estate in this state.
Adequate compensation also includes any damages to the parts of your land they did not take. These can include loss of access, loss of visibility, lost business damages, loss of conformation with zoning guidelines, damages caused by the highway being too close to a home, and other items that cause the remaining property to lose value.
What are the steps to the eminent domain process?
First, the condemnor must make an initial offer that includes any appraisals done by or on behalf of the condemnor in the previous 10 years. Although the condemnor is required to make that offer at market value, they rarely do, as discussed in the previous section. At least 30 days following the initial offer, the condemnor will make a final offer.
If you cannot reach a deal with the condemnor, they will file a lawsuit to condemn the property. The judge will appoint 3 disinterested property owners in the county to determine the value of the property. Each side may put on evidence to support their opinion of value. If either side is dissatisfied with the commissioner’s determination, they may object to the award and move the case to a traditional court.
Final Thoughts
I spent 2 years in the Attorney General’s Office handling eminent domain cases for the State. Landowners who did not hire an attorney never got a fair value for their property. Landowner’s who hired a lawyer always got a better value for their property than the ones who did not. I want to use my extensive knowledge of how the State operates to make sure landowners like you get a fair deal.
