Experienced Dallas Area Eminent Domain Attorneys Answer Frequently Asked Questions about Eminent Domain and Condemnation in Texas
The Law Offices of Kenneth A. Wright provides the following answers to questions our Dallas area attorneys most frequently encounter when advising property owners on the law and legal process surrounding eminent domain and condemnation in Texas. We hope this information proves helpful to you. If you have other questions, or if you require immediate assistance with a Texas eminent domain or condemnation proceeding, please contact the Law Offices of Kenneth A. Wright for a free consultation with one of our attorneys.
Who has the power to exercise eminent domain authority?
In general, the power of eminent domain lies with the government at all levels, including the federal government, the state government, county governments, municipalities and school districts. Public utilities such as water and power can have this authority as well.
Can private companies like gas pipelines take my property through eminent domain?
The answer depends on how the pipeline is classified. If it is classified as a common carrier or gas utility, then it may have statutory eminent domain authority. See our Resources page for information on contacting the Railroad Commission of Texas. This agency can tell you how a particular pipeline is classified and should be consulted if a gas company has approached you to survey your property.
Someone from the government wants to come onto my property to survey or appraise it. Do I have to let them on?
Generally speaking, you have the right to refuse entry onto your property, although the agency may then go to court to get a court order allowing them entry. Again, it is important to know whether it is a public or private entity doing the asking.
What is “public use?”
The eminent domain power is limited to taking private property for public use only. Normally, one thinks of easements for transmission lines or pipelines, a right of way for a road or highway, or the construction of a housing development or military installation. However, the definition of “public use” was greatly expanded by the United States Supreme Court in Kelo v. City of New London in 2005. Litigating whether a proposed taking is for a public use or not is often a central component of a condemnation case, along with the determination of just compensation.
What is “just compensation” exactly?
Just compensation is defined as Fair Market Value of the property on the date the property is appropriated. Both parties may seek appraisals, and it may ultimately be left to the courts to decide what constitutes just compensation.
You may think you know the market value of your home or other property, but Fair Market Value (FMV) for condemnation purposes is more complex than that. Rather than just looking at the property as it is currently used, the property should be appraised at its highest and best use of the property at the time of the taking, which requires expert appraisal and sophisticated valuation methods. The court will also look at FMV with regard to the proposed use of the property by the condemnor and without regard to the project, as well as the FMV of the remaining property that may be impacted in a partial taking.
What is a partial taking?
Sometimes a condemning entity wants to buy your entire property, such as to develop it for another use. But sometimes only part of the property is needed, such as an easement to install power transmission lines or bury a gas pipeline across a strip of your property. This is a partial taking. It is important in these cases to assess not only the value of the portion of land being sold but also the impact of the easement or partial taking on the rest of your property, which may be severely impacted.
What is inverse condemnation?
Even without a formal exercise of eminent domain power, there may be a “taking” of your property when government action greatly diminishes your property value. Examples might include the construction of an airport adjoining your property or the building of a power substation and installation of high-voltage transmission lines nearby. Also, a partial taking may wind up destroying the value of your entire property, so that elements of both condemnation and inverse condemnation should be considered.
What if the jury verdict is more than the Award of the Special Commissioners? What if it is less?
If the jury verdict determines just compensation in excess of the Award made by the Special Commissioners, you may be entitled to at least 5% simple prejudgment interest, plus 5% simple interest compounded until paid. If the verdict is less than the Award, you will need to return the deficiency at the time when the judgment is entered in order to avoid pre-judgment interest. If you decide to appeal the verdict, you may be responsible for post-judgment interest as well.