When the Government Takes Private Property: Eminent Domain FAQs

Use these links to jump to different sections:

• How Will I Know the Government Is Going to Use Eminent Domain to Take My Property?
• What if I Don’t Agree to Sell?
• How Can an Eminent Domain Lawyer Help My Case?
• What Are the Steps in the Eminent Domain Process?
• How Do Eminent Domain Lawyers Charge Legal Fees?
• Find Experienced Legal Help

Eminent domain is a misunderstood area of the law. It’s also a legal area in which, if you’ve been alerted that the government is interested in using your private property, you’re absolutely going to want to reach out to an attorney. We spoke with Steven M. Silva, an eminent domain attorney at Nossaman in Sacramento, California, about eminent domain FAQs and how a lawyer can help someone through the process.

How Will I Know the Government Is Going to Use Eminent Domain to Take My Property?

There are two types of eminent domain cases: Inverse condemnation and direct condemnation.

For inverse condemnation, you often don’t know that the government is going to use eminent domain because the government itself doesn’t think they’re using eminent domain. For a regulatory-taking inverse condemnation, you’ll receive notice of whatever the ordinary government action is, but usually, a regulatory-taking scenario is started by the landowner seeking to do something. So, the landowner is usually involved from the outset.

In direct condemnation cases, the government might notify the property owner in several ways. Typically, they will notify you that you are under consideration for eminent domain through a letter in the mail.

Very often, government agencies, especially for direct condemnation matters like a road widening project, will hire right-of-way agents who will knock on your door if they can’t get a response from you. The government doesn’t usually want to use eminent domain—it wants to voluntarily buy the rights it needs. It’s just easier for everyone if you can reach an agreement. So, it’s very common for governments to either have a right-of-way department that handles these things or to contract out to a private right-of-way consulting company.

What if I Don’t Agree to Sell?

Then, the government will likely begin a condemnation action. One misconception people have is that the government tries to kind of “steal your land,” and that’s generally not true. In my experience, most government agencies do try to pay just compensation. Usually, the breakdown is simply that the government disagrees with some of the hypothetical assumptions that go into determining the highest and best use. It’s no surprise that most people think that their property is worth more than what it might be in fair market value.

The government isn’t the hero in all of these cases, but generally speaking, they’re not the villain. Eminent domain is kind of unique in that, assuming everybody’s doing their job, everyone’s the good guy. Property is being taken for some good public purpose. And that’s good. Meanwhile, the landowner is getting their constitutional right under the Fifth Amendment: Just compensation for their sacrosanct property rights. And that is also good.

How Can an Eminent Domain Lawyer Help My Case?

If somebody is told they’re under consideration for eminent domain, they really ought to contact an attorney. An eminent domain attorney can help you in two ways:

1. They can ensure you get what you’re entitled to, or at least closer to that amount;
2. They can see if there’s an opportunity to re-engineer parts of the project.

The eminent domain bar is pretty small, so when you work with an experienced eminent domain attorney, they very often know the people on the other side, and that can really help both sides reach the maximum utility. I don’t want to give people false hope that maybe if they hire a lawyer, their house is going to get skipped on a public use project. But there can be opportunities to go three inches this way, five inches that way—or here’s a sound wall so the new traffic doesn’t drive you nuts. There are options that can be best explored with the assistance of legal counsel.

Of course, sometimes the two sides cannot agree, and you have to litigate. In those cases, you absolutely need an attorney and the right types of expert witnesses to make your case. The law can be complicated in this area—states vary in who has the burden of proof in valuation and who can testify on value. Eminent domain is an old area of the law, so some states have specific procedural rules from 1911 or so that haven’t been updated and don’t mirror ordinary litigation. This really is an area for experienced counsel who practices regularly in this field.

What Are the Steps in the Eminent Domain Process?

Many regulatory cases, in particular, can be resolved as a matter of law. There are two phases in eminent domain proceedings: Liability and just compensation. Typically, in an inverse condemnation case, different states have different rules. Some states have no specific guidance on how to process these cases, but in a lot of jurisdictions the way you do it is you have a determination on liability at a bench trial. Then, if you find liability, you proceed to a fact-finding trial on what the amount of just compensation ought to be. If you pass the motion to dismiss, the motion for summary judgment, and the liability trial, then they can get very drawn out and very expensive.

Direct condemnations tend to follow the flow of more ordinary civil litigation—at heart, it’s a trial about valuation and fair compensation. Some states force landowners to first go through a commissioner process where value is set by a commission and not a court. In those states, you can frequently get into court after the commissioner process, but you can see that with a doubled-up process, it can take a while to get done.

Frequently, though, in direct condemnation cases, the government deposits what it thinks the compensation should be. So landowners, in theory, have access to those funds. However, there can be some practical problems with withdrawing the deposit, and again, an experienced attorney can help navigate the ramifications of touching the deposit.

How Do Eminent Domain Lawyers Charge Legal Fees?

In many instances, these cases will be brought as a contingency fee case, where the attorney will only take a cut of the recovery if it’s successful. So, they don’t need to be incredibly expensive upfront to the landowner who contends they’ve been wronged.

The issue of attorney fees is a hot topic in the eminent domain bar. Some eminent domain cases can be brought as a hybrid, where the client pays a certain reduced hourly amount and then takes a contingency cut lower than a normal contingency fee arrangement. However, in most states, the contingency comes out of the recovery. In these states, if the government has taken your property worth a million, and you have to pay a few hundred thousand dollars, there’s an argument that the landowner still has not been made whole. If liability is clear and I think the real fight will be about valuation, I’ll often do an eminent domain case on contingency because I know I will get paid. Different lawyers do it differently, and there’s a broad spectrum of how these cases are compensated.

Fees can also depend on the provisions of law in a particular jurisdiction. In some, the government pays landowner attorney fees, while in others, they don’t. Furthermore, in some jurisdictions, expert fees are recoverable, while in others, the landowner is going to eat a $20,000 fee to an appraiser. We don’t have a very common system for the adjudication or apportionment of attorney fees or costs throughout the 50 states.

On the government side, it will often use in-house attorneys, a deputy attorney general, or a deputy district attorney to litigate eminent domain cases. However, many of these officials will outsource condemnation cases to private counsel because it is a pretty niche area of law. When I work for the government, I work on an hourly basis.

Find Experienced Legal Help

Visit the Super Lawyers directory to find an experienced eminent domain attorney in your area for legal advice. If you’d like to learn more about this area of law, please see our overviews of eminent domain law and real estate law.