Eminent Domain Litigation

Eminent Domain Litigation

Eminent Domain Litigation

Condemnation Process Overview

What is condemnation?
Condemnation is the power to take private property for a public purpose. The power of condemnation is also known as the power of eminent domain.

Who can take my property?
Federal, state and local governments have the power to condemn private property and this power has been delegated to many governmental agencies. Thus, the Illinois Department of Transportation may have the power to condemn your property. The government has also delegated the power of eminent domain to public utilities and in certain, very limited situations, to private companies and individuals.

Can the State take my property for any reason?
No. The condemning authority may only take your property for a necessary public purpose.

Who decides whether the condemnation of my property is for a public or private purpose?
Only a judge can decide. Even if the condemning authority believes the condemnation is for a public purpose, a judge can rule otherwise and deny the government the right to take your property.

Do I have to take the amount the government offers?
No. You are entitled to contest that amount and to receive full compensation.

How will I know whether the government really wants to take my property?
In most cases, you will learn far in advance of the proposed construction date of the project which may require the taking of your property. Your first knowledge of the project may come from reading a newspaper article or talking to a neighbor.

In many cases, the public agency will hold a public hearing at which the agency will describe the boundaries of the project, so that you will be able to determine whether your property is included within the project.

The condemning authority will give you a written notice that they intend to condemn your property and its required to give you a written offer to purchase your property prior to filing a condemnation action

The Right to Condemn

Does the State have the right to take my property?
It depends. The State has the power of eminent domain. All counties and cities in the State of Illinois also have the right of eminent domain. Many state and local governmental agencies and public utilities have the power of eminent domain as well.While a specific governmental body or public utility may have the power of eminent domain, that does not necessarily mean that it has the right to take your specific property.

If you do not want your property taken, only the Court can require that your property be condemned. If the Department of Transportation, for example, claims that it needs a portion of your property to construct a road, it may not take your property unless you give your consent or unless the court enters an order allowing the taking.

If you do not consent to the condemnation, the condemning authority must prove to the court that your property is reasonably necessary for a public project. While the courts more often than not allow the requested condemnations, there have been several occasions in which the courts have not allowed the proposed condemnation.

Can the State take as much of my property as they want?
No. The State can only take as much of your property as the court finds is reasonably necessary to accomplish a public purpose. If the court finds that only a portion of the property sought by the State is necessary, it may deny the State the right to take as much of your property it seeks.

The State is trying to take a portion of my property. After the taking, the rest of my property will be less valuable or worthless. Can we force the State to take the entire property?
No. The Court cannot require the condemning authority to take more of your property than it wants. If the taking renders the rest of your property less valuable or worthless, your remedy is a jury award which takes this into consideration.

Precondemnation Planning

Should I be doing anything before my property is condemned?
There are several actions an owner may take before his property is condemned. In general, it is wise for an owner to seek the advice of a lawyer when considering precondemnation actions. This is because the actions an owner takes before the property is condemned may help or hurt his case.

The owner should avoid taking positions, especially written positions, which may be used against them in the condemnation proceeding. If the owner contests the tax assessment, for example, stating that his property is worth less than the county’s estimate, that appeal may be used against him if, in the condemnation case, the owner asserts a higher value.

Leases and mortgage agreements signed by the owner prior to condemnation may affect the portion of the final award to which the owner will be ultimately entitled. The parties’ lawyer should be consulted on condemnation clauses contained within these documents. See the compensation section for a discussion of apportionment issues.

The owner should maintain the appearance and condition of the property. Visual impressions, even to sophisticated professionals, are important, and the condemning authority’s appraisers will be inspecting the property long before it is condemned. It behooves the owner to have the property looking as good as possible.

Contamination on the property could reduce the condemnation award, delay the payment of funds to the owner or result in the owner incurring liability for environmental cleanup charges. It thus behooves the owner to take those steps necessary to assure that the property remains free of contamination. In addition, if there is contamination on the property, the owner may be well advised to consult with an environmental lawyer.

Property owners are often in the process of planning for a development or redevelopment of their property when the government announces its plans to condemn the property. Land use and building applications can have a significant effect on both the use of the property and the condemnation case. For this reason, the owner should discuss all plans for the property with the condemnation lawyer.

What can a landlord and tenant do to avoid uncertainty and legal disputes over the condemnation award?
The single best protection for both landlord and tenant is a clear lease provision called a “condemnation clause”. This clause should spell out which part of the award goes to the landlord and what goes to the tenant in the event a taking occurs.

The condemnation clause should anticipate an allocation in the event of a whole taking of all leased property; a partial taking which effectively destroys or severely damages the untaken remainder; and a partial taking which has little effect on the remaining property.

The length or term of the lease may also have a significant effect on the amount awarded to the parties. If you have knowledge of a future taking, it is wise to consult your condemnation attorney about your lease. The full compensation to which you are entitled includes not only the value of the property taken but also includes compensation for reduction in value to the property which the government does not take. This compensation is called “severance damages”.

Appraising the Property

How will my property be appraised?
Appraisers generally use three methods of appraisal to estimate the value of real estate: the market approach, the cost approach and the income approach.

Which one will they use to appraise my property?
Appraisers generally prefer to use as many of the three approaches as they deem appropriate. It is not unusual, for example, for an appraiser to use all three approaches when valuing an office building.

Appraisers may choose not to apply one or more of the three approaches if they feel application of a given approach would be inappropriate, given the particular approach or the particular property. Since the cost approach considers the cost of reconstructing buildings on the property, the cost approach is obviously not used to estimate the value of vacant property. Since the income approach is based upon the amount of rent an owner would receive for the property, the income approach is seldom used to value properties not typically rented.

How does the market approach work?
Under the market approach, appraisers search for properties they feel are comparable to your property. They then use the sale prices of those properties to arrive at an estimate of value for your property.

Since no two properties are exactly alike and since some of the dissimilarities between the appraiser’s “comparable” properties and your property may be significant, the appraiser makes adjustments to the sales prices of the comparable properties before using the prices to arrive at an estimate of value for your property.

These adjustments may be positive or negative, depending on whether the comparable property is viewed by the appraiser as having superior or inferior characteristics when compared to your property. If the adjustment is positive, the appraiser will increase the price of the comparable property before he compares that price to your property. If the adjustment is negative, the appraiser will decrease the price of the comparable property when using it to appraise your property.

Can you give me an example of how an appraiser may make adjustment?
Yes. Let’s say you own a vacant piece of commercially-zoned property on Worthington Boulevard. The appraiser finds that, during the last three years, two other vacant pieces of commercially zoned property sold on Worthington Boulevard. He then uses these properties as his “comparable sales.”

Let’s say the first “comparable sale” sold for $5.00 per square foot, but that property, unlike your property, is on a corner. Let’s assume further that the appraiser observes that buyers pay 10% more for corner locations than for interior sites. Since the comparable property has a characteristic (corner location) superior to your property, the appraiser may utilize an adjusted price per square foot of $4.50 ($5.00 minus $.50 10% of $5.00 = $.50) when appraising your property.

Let’s say that the second “comparable sale” sold for $4.00 per square foot, but that property, unlike yours, is next to a railroad line. Let’s assume further that the appraiser observes that buyers pay 20% less for properties next to the railroad tracks than others. Since this “comparable property” has an inferior characteristic (proximity to the railroad line), the appraiser may make a positive or upward adjustment to the price paid for this “comparable sale.” Under this assumption, the appraiser may utilize an adjusted price per square foot of $4.80 [($4.00 plus $.80 (20% of $4.00)] when appraising your property.

I just bought my property recently. Will the appraisers use the price that I paid for the property recently in appraising its value today?
Probably. In general, appraisers consider the purchase of the subject property as the most comparable sale available. If, however, the property itself or market conditions have changed dramatically between the date of purchase and the date of condemnation, the appraiser may choose not to use the sale of the subject property in preparing the appraisal.

A property similar to mine recently sold for a very low price; however, it was sold by a couple going through a divorce who needed to sell it quickly in order to liquidate their properties and to pay off their joint debts, including the monthly mortgage payments which were three months in arrears. They sold it to a company which buys up “distress” properties and then resells them for a profit. Will the appraisers use the sale of this property in appraising my property?
Probably not. “Fair market value” is the price which a seller willing, but not compelled, to sell would receive from a buyer willing, but not compelled, to buy. It is the most probable price for which the specified property should sell after reasonable exposure in a competitive market under conditions requisite to a fair sale, with the buyer and seller each acting prudently and assuming neither is under any undue duress.

Most appraisers would view this sale as involving a seller compelled and under undue duress to sell. The appraisers may also find that the property was not sold after reasonable exposure in a competitive market and was not sold under conditions requisite to a fair sale.

Notwithstanding the above, appraisers often disagree as to whether a given sale should be eliminated from consideration because of the motivational factors influencing the buyer and the seller.

How does the cost approach work?
Under the cost approach, the appraiser first estimates the value of the land, as if the land were vacant.

He then estimates how much it would cost to rebuild, at today’s prices, all of the improvements on the property.

He then estimates the amount by which the improvements have depreciated and subtracts the depreciation from the cost of reconstruction new. He then adds the depreciated cost of reconstructing the improvements to the land value to arrive at a total estimate.

I have taken great care of my building. Will that affect my depreciation rate?
Yes. Part of depreciation is physical depreciation. Physical depreciation is simply the wear and tear on your buildings. Everything else being equal, a building which is better maintained is less depreciated and, therefore, more valuable than one which is not well maintained.

How does the income approach work?
First the appraiser estimates how much your property would rent for in the open market. He does this by finding rental rates of comparable properties. He, thus, arrives at an estimate for annual gross income.

He then estimates an amount for vacancy and collection and subtracts that amount from gross income to arrive at an estimate of adjusted gross income.
The appraiser then estimates the annual expenses which would be paid by an owner of your type of property and subtracts the total amount of those expenses to arrive at an estimate of annual net income.

Finally, the appraiser converts his estimate of annual net income to value by dividing his estimate of annual net income by a capitalization rate.

What are the types of expenses appraisers usually consider when arriving at annual net income?
Maintenance, management, taxes and insurance.

Of the three approaches to value – market, cost and income – which approach will lead to the highest value for my property?
The answer to this question depends upon your property, your appraiser and the real estate data used in the appraisal. More often then not, however, the estimates arrived at by all three approaches are very similar.

In using the income approach to appraise my property, will the appraisers use the actual rents on my property? I’m concerned because I rent out half of my property for rents based on a ten-year old lease and the other half I rent for half-price because, with the property about to be taken, I’m having a hard time finding tenants.

Under the income approach, the appraiser determines gross income by estimating economic or market, rather than actual, rent. Economic or market rent is the rent which property similar to yours is renting for on the open market. This means that the appraiser will generally use your actual rents only when they are the same as economic or market rent.

The appraisal must reflect the value of the property as of the date of condemnation. If the actual rents on the property were set ten years ago and are substantially below the rents paid on properties similar to yours around the date of valuation, then it is highly unlikely the appraisers will use the actual rents to appraise the property.

The law also provides that the value of your property is not to be diminished by the threat of condemnation. If the rents paid on your property are substantially below the rents paid for properties similar to yours, but not under the threat of condemnation, then the appraisals may not be based upon those rents.

Why are some appraisal estimates so different from others for the same property?
An appraisal is a subjective opinion of value. The appraiser’s understanding of the facts, his or her factual assumptions, and his or her understanding of eminent domain law may all operate to affect dramatically the final dollar amount of value estimate.


Compensations and Negotiations

If I don’t agree with the State’s offer, who decides how much money I get?
A jury. State law provides that a jury of twelve persons determines the amount of compensation to be paid to an owner who loses his property through condemnation.
Most courts will not schedule a jury trial until the case goes to mediation.

The taking of my property will hurt my business. Am I entitled to compensation for damage to my business?
It depends. Illinois has a business damage statute which allows an owner of a business to recover compensation for business damages if part of his property is condemned by the Department of Transportation, or by a county, municipality, board, district, or other public body. In order to qualify under this statute, however, the business owner must meet the following criteria:
  1. The condemnation must be undertaken by the Department of Transportation, or by a county, municipality, board, district, or other public body. For example, an owner whose property is condemned by the county may thus qualify, while another owner whose property is condemned by a public utility may not.
  2. The condemnation must be for a right-of-way. An owner whose property is condemned for the construction of a road, for example, may qualify, but an owner whose property is condemned for a school, for example, may not.
  3. The taking must be a “partial taking,” that is, a taking of only a portion of the property, and the business affected must be located on both the part taken and on the remaining portion.
  4. If the condemnation action is filed before January 1, 2005, the business must be an established business of at least four years standing. If the condemnation action is filed on or after January 1, 2005, the business must be an established business of at least five years standing.
If a business owner does not meet each of these requirements, it is probable that he will not be able to recover compensation for business damages, even if the taking damages the business.

If my business will be hurt by the taking and I qualify for business damages, is the condemning authority required to convey the first offer to settle my business damage claim?
No. Under Illinois law, the business owner, not the condemning authority, must convey the initial offer to settle a business damage claim. The condemning authority must provide written notice to all business owners, including tenants, who operate a business located on property to be acquired that it intends to condemn the property. Within 180 days after receiving the condemning authority’s written notice, the business owner must submit to the condemning authority a good faith written offer to settle business damages.

The business owner is also required to provide the condemning authority with copies of the owner’s business records which substantiate the offer to settle the business damage claim. The condemning authority must respond to the business owner’s offer within 120 days after receipt of the business damage offer.

If a business owner fails to meet the 180-day deadline for submission of the business damage offer, then the Court must strike the business owner’s claim for business damages absent a showing of a good faith justification for failing to meet the 180-day deadline.

Are tenants allowed to recover business damages?
Yes.

I have only been in business for three years, but the business I operate has been at this location for 20 years. I bought the business three years ago and have continued the same operation. Do I qualify for business damages?
It depends. The law allows “tacking ” which means that in determining whether a business is “an established business of four years standing,” a business owner may “tack on” or add the years of operation of prior owners in order to meet the four-year requirement.

The court will generally allow “tacking” when it finds that the business on the condemned property has been substantially the same business for four years or more. If there has been a change in ownership, the prior owner’s years will be “tacked on” if the court finds that the business, and not just the business site, was purchased and continued. In this regard, the court may look to such indications as whether accounts receivable were purchased and accounts payable assumed.

My business has been losing money, but the condemnation of my property will hurt my business even more. Am I prevented from recovering business damages because I haven’t been showing a profit?
No. If a business owner meets all of the tests for the recovery of business damages, he is not disqualified because he has not recently shown a profit.

I rent my property to tenants. Are they entitled to compensation?
Yes, but the compensation which your tenants receive may affect your own recovery.

Your tenants’ rights will be protected in any condemnation case or precondemnation negotiations. The condemning authority usually seeks title free and clear of all interests, including leases.

In order to assure that it receives free and clear title, the state will name the tenants as defendants in the condemnation case or will require the receipt of subordination or assignment of lease documents if the taking is settled before a condemnation lawsuit is filed.

The real estate award which the condemning authority is required to pay is an all-inclusive award and is subject to the claims of all tenants. The award will be made in the name of all parties having an interest in the property, including tenants.

Whether a tenant may recover a portion of the real estate award is generally determined by the terms of the lease and whether the tenant is paying less than fair market rent.

If the lease is silent on the issue or allows the tenant to claim a portion of the award, the tenant may be able to receive a portion of the award. This portion is generally measured by the present value of the economic advantage of the lease during the remaining term of the lease and option periods.

Since compensation for the taking of the tenant’s lease comes from the all-inclusive real estate award, otherwise paid to the owner, the more the tenant receives for the value of his lease, the less the owner receives for his interest.

There is no similar sharing arrangement for business damages. The amount a business tenant receives from the condemning authority does not serve to reduce the compensation to which the owner may be entitled, and the owner, who does not have an interest in the tenant’s business, does not share in the business damage award.

In certain types of projects by certain condemning authorities, tenants may also be eligible for relocation assistance under the Federal Relocation Assistance Act outside the condemnation case.

If I offer to settle for less than our claim and the case does not settle, will the jury be allowed to hear how much I offered to settle for?
No. Offers to settle are not admissible in evidence.
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