Part 2 in the Condemnation Process: Negotiating Your Terms and Compensation

Posted by on Jul 30, 2012 in Blog, Condemnation, Written by Patrick Reznik | No Comments

Patrick L. Reznik, an attorney with Braun & Gresham, answers a few common questions about the rights of Texas landowners threatened by eminent domain, a process by which private and public entities condemn private lands to build transmission lines, pipelines, rail systems and roads, and to take surface or groundwater.

This is Part 2 in a 3 part series on understanding the condemnation process. To read Part 1 & 3, follow the links below:
“Part 1: I Received a Letter Saying They’re Taking My Land…Now What?”
“Part 3: Special Commissioner’s Court- When Settlement Negotiations are Not Enough”

The route the powerline/pipeline/rail line takes across my property is the worst possible route. Is there anything I can do?
Yes. We have successfully negotiated the relocation of power lines and pipelines across our clients’ properties. The condemning company does not have the right to enter your land without a court order or your permission and generally their maps have been drawn using public data and aerials without taking into account the uniqueness of your land.

The condemning company also demanded I sign their standard easement giving them access to my entire property and not just the area on which they are planning to build. Do I have to sign this?
No. The terms of the easement are negotiable just like the compensation. Limiting a condemning authority’s access to the easement, limiting our clients’ liability and other key terms are a priority for us. Generally, the terms of the easement and compensation agreement are negotiable during this initial period of communication.

I’ve tried to negotiate with them on the terms and compensation for the use of my land, but now I have received a final offer letter giving me only a 14-day deadline! They also included a written appraisal. What do I do now?
First, if you haven’t talked to an attorney, you should. The clock is now likely running if it has been 30 days since the initial offer and the condemning authority has met the other legal requirements of a “bona fide offer.” If you have not agreed to the terms of the final offer within 14 days, they can file a condemnation suit against the owner of the property being condemned.

But their written appraisal is less than their initial offer. Should I take their final offer?
That depends on several factors that should be discussed with an attorney. It is not uncommon for the appraisal to be less than the initial offer. Sometimes the appraisal is a little more than the initial offer. The law requires the final offer to be equal to or greater than their appraisal. Both situations make the written offers “appear” more appealing.

In either scenario, landowners often feel trapped. In the first scenario, the landowner is made to feel “lucky” that the initial offer was more than the appraisal and that the final offer is generally the same as the initial offer. In the second scenario, the landowner is made to feel “lucky” that the final offer increased to the appraisal number. But in reality, landowners often feel the final offer is too low to be fully and fairly compensated. Our firm has negotiated terms for our clients that far exceed those in the final offers.

At what point should I hire my own appraiser?
Not every landowner will need to hire an appraiser. When to go to the expense of hiring an appraiser is tricky and timing can be critical. We have compiled a list of experienced appraisers who have successfully helped our clients obtain greater compensation. As with any professional, the level of appraiser’s expertise varies depending on the condemning authority and the highest and best use of the land to be acquired.

Since a pipeline or easement is permanently on my property, can I get annual royalty payments based on the profits the condemning company will make for using my land?
Unfortunately, no. If a pipeline or utility company is taking an easement and right-of-way, you still own the land, but with restricted use. If a governmental entity or a rail company is taking your land, then you are being forced to deed your property to that company. In either case, the law requires only a one-time payment.

What happens next if I refuse the final offer and have been unable to negotiate settlement documents and fair compensation?
If negotiations have stopped, the condemning company will file a condemnation proceeding in the District Court in the county where the property is located and serve the landowner with the lawsuit. They will file the standard easement and right-of-way or deed they want to take and the lawsuit becomes solely about the money damages.

What happens next?
The Special Commissioners will promptly schedule an eminent domain hearing to assess damages.

A hearing makes me nervous. Can we settle without going to a hearing?
During this time, we have often continued negotiations on behalf of our clients and have settled cases the day before the evidentiary hearing. But if we must proceed to the hearing, don’t be worried or overly anxious. We have experience in preparing and presenting our clients’ cases to the Special Commissioners with favorable results.

 

Give us a call today to begin developing a plan of action for how you want to challenge your private or public condemning agency. At Braun & Gresham, we represent landowners exclusively, so we always have your best interests in mind. We bring authority and expertise to the condemnation process which translates to a place at the table— a place that is invaluable in a seemingly helpless process.

Stay tuned for our third and final blog in this 3-part series, “Part 3: Special Commissioner’s Court- When Settlement Negotiations are Not Enough.”

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