When the Government Needs Your Land
Northern California property owners are in a good bargaining position for eminent domain cases
on September 25, 2020
Updated on February 8, 2021
You get a letter in the mail from Caltrans saying there’s a new freeway on-ramp in the works—and your house is in the way.
The agency wants to take your property for the project. What should you do next?
Doing nothing is your worst option.
“The old saying was, ‘You can’t fight city hall,’” says Joseph H. Fagundes, who practices eminent domain law at Malm Fagundes in Stockton. “That’s absolutely incorrect.”
Know Your Rights
While it may be impossible to derail the project, the state of California grants many advantages to property owners in negotiating the details, especially when it comes to compensation. For instance, you can claim the highest value that your property could bring for the most lucrative allowed use, even if that’s not what it’s being used for.
“I might have property that’s just bare land, but it is zoned—and could be developed into—single residential housing,” says Fagundes. “I don’t have the money to do that. But when it comes to be valued for eminent domain purposes, it’s required that it’s valued at the highest and best use it can be put to. That’s a huge, huge advantage to the landowner.”
The agency eyeing your land—city, special district, state or federal—will get an appraisal, often using appraisers who price property on the low end. If you simply refuse to sell or negotiate, the agency can schedule a hearing to get a resolution of necessity. Many property owners think they can wait and change the board’s mind at that hearing.
“That really never happens,” says Fagundes. “After the resolution of necessity, [the agency] can then file in court, and get what’s called an order of early possession. So even though you haven’t agreed on an amount, even though the amount is still being argued about, they can get possession of your property and start building their project.”
Why Are They Taking Your Land?
A few reasons the government might need your property:
- Power projects
- Water projects
- Streets and freeways/widenings
- Irrigation pipelines
Get Some Advice
For advice on how the process works and what steps to take, it’s a good idea to consult an experienced attorney early on.
“Get that legal advice from an attorney who actually does eminent domain,” suggests Fagundes. “If you don’t do it, there are a lot of a lot of pitfalls you can fall into. I’ve found that clients that do that early and realize their rights earlier don’t fall into the mistakes, and [they] end up in a better position of negotiating.
“I’ve got someone who’s approached me just recently who felt like, ‘Oh yeah, I heard about eminent domain and … I can handle all this,’ and it’s now a mess. And now he’s come to me, and I can help him get through the mess, but unfortunately, he’s probably, on the one hand, given away a lot of the rights that he had, and on the other hand, it’s probably going to be more costly now for me to undo and fix what’s happened.”
Not every taking involves the entire property. For things like electrical lines and irrigation pipelines, the government just needs an easement. “So the property owner still owns the property, and farmland areas can still farm over the property or under the lines,” Fagundes says. Or perhaps someone has a favorite redwood tree slated to be chopped down to make way for electrical poles.
“A lot of agencies, the first inclination is, you know, the path of least resistance: ‘Hey, this is the way we’ve designed it. It can’t be any other way.’ And it turns out, when you start talking to them, well, no, there is some flexibility."
And if a partial taking lowers the value of the rest of the property, the owner can get damages.
Your Day in Court
As a last resort, if negotiations fail—which is rare—a property owner can take an agency to court. Here, too, the homeowner has the advantage in California, because eminent domain cases have priority over many other civil cases, and they are heard by a jury rather than a judge. And if the jury finds that the owner’s property value claim is reasonable, the judge may order the agency to pay all or part of the homeowner’s litigation expenses. On the other hand, government agencies, even if they win a case, are never allowed to seek repayment of legal expenses from the property owner.
Fagundes says things can get pretty emotional in the world of eminent domain. “The whole idea that the government can force you to give up your property is really disconcerting to a lot of people,” he says. “The public policy behind it is, if the government didn’t have that power, it would be hard to get schools and roads built ... Everybody agrees we need schools and roads. … Just not in my backyard.”
For more information, see our eminent domain overview.