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1. I have learned that a public agency is considering acquiring my property, should I consult with an attorney now? 2. How should I respond to the government's written offer to purchase my property? 3. How should I respond to a notice of a hearing from the government to consider adopting a Resolution of Necessity authorizing eminent domain to acquire my property? 4. I have been served with a complaint in eminent domain, what should I do? 5. Can I withdraw the money the government has deposited for my property before the case is finally resolved? 6. If I cannot stop the government from acquiring my property, to what compensation am I entitled? 7. What typically happens in an eminent domain case after an answer to the government's complaint has been filed by the landowner or tenant? 8. Who decides what compensation I am entitled to receive in a condemnation action? 9. What does a jury consider to decide the amount compensation to be awarded? 10. How long does it usually take to resolve an eminent domain case? 11. What expenses and fees can the condemnee expect to incur?
1. I have learned that a public agency is considering acquiring my property, should I consult with an attorney now? Yes. We believe that a landowner or tenant whose property may be acquired should consult with an experienced eminent domain attorney as soon as it learns its property is being considered for acquisition. At this meeting valuable information can be learned including: the condemnation process; how to position yourself in the event your property is acquired; and the best way to respond to upcoming inquiries from the condemning agency? 2. How should I respond to the government's written offer to purchase my property? We recommend that a landowner or tenant should seek the assistance of an experienced eminent domain attorney before responding. There are traps for the unwary and inexperienced. A well intentioned response may be damaging to your interests. The attorney may possibly have information indicating that the offer is legally inadequate. The offer should be no less than the amount of the government's required appraisal and it should include a written summary of its basis. (See Nature of Proceeding at Para. A. 2, Appraisal, Offer and Negotiations.) Beyond this, the recommended response will depend on the facts. 3. How should I respond to a notice of a hearing from the government to consider adopting a Resolution of Necessity authorizing eminent domain to acquire my property? We recommend that a landowner or tenant should seek the assistance of an experienced eminent domain attorney before responding. At Turner & Turner, if we determine that the owner does not have a legitimate "right to take" challenge, we have often recommended that our clients not respond to the notice or attend the hearing. Of course, there are many exceptions to this practice. There are numerous situations, including but not limited to preserving a right to take challenge where it is very important to provide a timely response and to present any written objections prior to the hearing. (See Nature of Proceeding at Para. A. 3. Appraisal, Offer and Negotiations.) 4. I have been served with a complaint in eminent domain, what should I do? A response to a complaint is required to be filed within 30 days from its service. The response of a landowner or tenant is usually by way of an answer or a demurrer. We recommend that the response to the complaint be prepared by an experienced eminent domain attorney. 5. Can I withdraw the money the government has deposited for my property before the case is finally resolved? If there are no conflicting claims among the condemnees (e.g., tenant or lender) the landowner condemnee can usually withdraw all or part of the deposit. By making that withdrawal the condemnee must waive all claims (e.g., objections to the taking) except a claim for greater compensation. 6. If I cannot stop the government from acquiring my property, to what compensation am I entitled? Compensation for the property taken, severance damages, if any, if only a portion of the property is taken, possibly precondemnation damages. Additionally, a business owner may be entitled to loss of goodwill. A condemnee may also be entitled to interest on all of those amounts and to relocation assistance. "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." Cal Const art I, Section 19, in part. 7. What typically happens in an eminent domain case after an answer to the government's complaint has been filed by the landowner or tenant? At Turner & Turner we first evaluate the case and make initial recommendations regarding the type of consultants to be retained. This usually includes a real estate appraiser and may also include consultants such as a civil engineer, land use planner and a goodwill appraiser. We often conduct discovery concerning things such as the highest and best use, precondemnation conduct by the acquiring agency, construction of the project and how it will impact any remaining property of the owner. Typically the government's attorneys will also conduct discovery and retain its own consultants. Ninety days before the scheduled trial on the issue of compensation each side discloses the identities of the consultants they intend to present at trial as experts and the opinions of value of their appraisers. Each side then takes the depositions of the experts disclosed by the other side. At trial each side presents its case, the majority of which is most often testimonyfrom the experts relating to the fair market value of the property being acquired, including severance damages, precondemnation damages and loss of goodwill, if any. (See Nature of Proceeding at Para. D., Discovery, Exchange and Trial.) 8. Who decides the compensation to which I am entitled to receive in a condemnation action? Assuming the case does not settle and the parties do not waive a jury, a jury will decide the issue of compensation (i.e., the amount of compensation that is just) and the court will decide all other issues. 9. What does a jury consider in determining the amount compensation to be awarded? At trial, each side presents evidence in support of its position regarding compensation. The jury determines the amount of compensation to be awarded. The jury verdict can be no lower than the lowest expert opinion presented at trial and no higher than the highest expert opinion presented at trial. The opinions presented at trial provide a range for the jury's verdict or, if waived, the court's decision. 10. How long does it usually take to resolve an eminent domain case? Usually an eminent domain case is set for trial within 12 to 18 months following the filing of the complaint. Most often a case will either settle or be resolved through a trial within that period. However, the trial may be continued or a party may appeal following a trial, both of which could significantly delay resolution of a case. 11. What types expenses and fees can the condemnee expect to incur? Unless a condemnee is awarded litigation expenses following a trial (See Nature of Proceeding at Para. D. 5, Discovery, Exchange and Trial.), the condemnee will be responsible for the majority of its expenses and fees. This includes, but is not limited to, attorneys' fees and expenses and experts' fees and expenses. The government must offer to pay up to $5,000.00 of the reasonable costs of the owner's independent appraisal. The government is required to reimburse the condemnee for some of the court costs it incurs such as filing and motion fees and reporters' fees for depositions.
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