FAQ

A right of way provides the public with access across and through private property pursuant to authority given by the private property owner (e.g. an easement, deeds of conveyances for roads and streets, railroad tracks and sidewalks)

Eminent Domain is the power given to a governmental entity to take private property for a “public use” subject to the payment of “just compensation” for the taking of the property.

The term “condemnation” is used to describe the statutorily allowed legal proceedings which allows a governmental entity to take property through the filing on a legal action with the court who will determine the “just compensation” to be paid to the property owner for their property.

The need for a property owner to hire a lawyer will depend on what phase of the acquisition process the parties have reached. In the early phase where information is forwarded to the property owner about the acquiring entities desire to purchase the property, an owner may not necessarily need counsel. As the process moves forward and an offer to purchase is made, a seller may consider contacting counsel (or in many instances you will receive advertisement from counsel offering to represent them in this matter) to review the offer and seek additional services on their behalf to assist in evaluating the offer to purchase. Sometimes property owners feel that they are skilled enough negotiators that counsel is not needed. If the parties are not able to come to an agreement and the condemnee files an condemnation case with the court it is highly advisable to retain competent counsel who has expertise in defending condemnation action.

Prior to an Order of Court indicating what the fair market value is to be paid for the property, you are not required to sell your property; however, the owner at any point along the negotiation/condemnation process can decide that they want to sell the property.

The property value to be offered for the property is usually obtained from appraisal report(s) prepared by a certified state licensed appraiser in accordance with applicable standard adopted by the Uniform Standards of Professional Appraisal Practice (“USPAP”).

The offer to purchase is made to the owner(s) of record through an offer to purchase letter sent on behalf of the entity seeking acquisition of the property. To whom the offer is sent is typically confirmed by a title search conducted by a title insurance company indicating the owner of record. The offer will be made by the acquiring entity when it has determined it is ready to acquire the property in accordance with its redevelopment or public improvement projects schedules.

If the offer to purchase is accepted prior to the matter being filed with the court, the parties will enter into a Real Estate Sales Contract indicating the terms of the agreement, the price to be paid for the property and the date the parties desire to go through with a real estate closing at an agreed upon time through a local title company. If an offer is accepted after the matter is filed with the courts, typically the parties stipulate to an agreement and the court will enter a “Final Just Compensation Order” which identifies the property to be acquired, the just compensation amount to be paid by the condemnee, the time frame in which compensation must be paid and if applicable interest on the just compensation amount from the time the court enters the final order to the date the funds are deposited with the proper court official.

Closing costs vary from transaction to transaction. Typically certain closing costs are paid up by the seller and the remainder by the buyer. Typical closing costs to be paid by the seller are outstanding water and sewer charges, prorated real estate taxes for the current and past years, any delinquent real estate taxes owed, county and state transfer charges, mortgages and fees for processing payment, recording fees for recording documents that are the responsibility of the seller (i.e. Release of Mortgage) and attorneys fees and service fees of the title company to secure local water and zoning certifications. The buyer typically pays for closing costs of the title company, city transfer taxes and title insurance charges. Other unspecified charges are usually shared by the parties in accordance with an agreement between the parties as to which of the parties will pay certain closing costs.

Because a mortgage is a secured interest against the property, it will be paid at closing by requesting a “payoff letter” from the lender or in the case where the matter is before the court, it will be addressed at the conclusion of the case by the mortgagee petitioning the court for payment of the loan.

Yes you may be subject to a capital gains tax on the sale of your property. It is advisable that you consult with a tax consultant on the matter.

You can always make a counteroffer; however, unless you recently had your property appraised and that value is higher than the offer or you have a contract to sell the subject property to a non interested party at a higher figure, it is advisable that you consult with a real estate specialist to provide you with accurate information on what the value of your property is or what similar properties in that community going for in the current real estate market. This will provide you with information in support of your counter offer.

Typically you cannot prevent the purchase of property if the condemnee so desires to acquire it for a “public purpose” to benefit the public. (Example: new school, police station, fire station, road improvements, hospital, etc.). However, you may be able to stop the purchase of your property by getting the government officials to change their project and plan location to exclude your property. If the government does not change its plans, your only recourse is to challenge its authority to take in the condemnation proceedings by filing a “Traverse”. A Traverse is a legal motion filed by the property owner requesting the court stop the condemnation effort to acquire his property because it does not have proper authority to acquire the property, or they didn’t make a good faith offer to the property owners or there is some flaw in the authorizing ordinance or resolution that does not give the condemnee authority to acquire the property. The party raising the claim must convince the court by “clear and convincing“ evidence that the condemnee’s authority to acquire is flawed. Even if you are successful in getting the matter dismissed, there is a great possibility that the condemnee will correct the flaws and refile the court action for acquisition.

If a property owner appears before the court for the first time the court will explain the proceeding to you and ask if you desire to reach a settlement or take the matter to trial before a jury. If you had not filed an official “appearance” with the court you will be required to go to the Clerk of the Court and obtain an appearance form and pay the appearance fee. If you want to settle the court may instruct the parties to sit down and try to negotiate a settlement or when there is an impasse the Court could conduct a settlement conference to suggest a fair compensation amount to be paid. By no means do you have to accept the Judge’s recommendation; however, the Court will recommend that the matter go to trial for a determination of value by a jury and that you retain Counsel to advance your cause.

The procedure for receiving payment in a Court Action is significantly different than that of a real estate closing held at a title company. Because the matter is subject to the jurisdiction of the Court, it must follow statutory procedures before the Court can releases any funds to the property owner. In a Condemnation every party with an identifiable interest in the property is served by service of process to allow them to protect their interest before the Court. Once the owner and the condemnee have settled, the Court enters an Agreed Judgment Order, and the condemnee has deposited full compensation with the proper Court Official, each party in the matter with a claim for payment can petition the Court for payment out of the proceeds. The Court in its judgment will make payment of those liens, encumbrances, taxes and other clouds to title on the property according to the hierarchy of the claim. For example, outstanding government liens and real estate taxes will be paid first out of the proceeds, next are any secured liens and mortgages of record and lastly, the property owner will receive the balance. Typically, the Court will enter an order directing the Court Official that is holding the funds (without interest) to pay as it instructs. Sometimes this procedure can move quickly if there are no claims against the property that have to be considered by the Court.

Typically the cost of going to trial is not recoverable. However, if at any point after the filing of the complaint (including at the conclusion of the trial) the condemnee abandon or voluntarily dismisses the condemnation matter, the condemnor is entitle to recover from the condemnee “reasonable” legal fees, costs and expenses incurred in the advancement of the court case. The Judge will determine whether the requested legal fees, cost and expenses are “reasonable”.