Frequently Asked Questions

Overview

What is condemnation?

• Condemnation is the acquisition or taking of private property for a public purpose. Condemnation is sometimes referred to as the right or power of eminent domain.

Who can condemn my property?

• Federal, state, and local governments have the right to condemn private property, and this right has been delegated to numerous governmental agencies. Thus, the Texas Department of Transportation has the right to condemn certain property. The government has also delegated the right or power of eminent domain to certain private entities, including public utilities and common carriers. The right to condemn carries with it the responsibility to pay just compensation to the land owner. An entity with the right to condemn is known as a “condemning authority.”

Can a condemning authority take my property for any reason?

• No. A condemning authority may only take your property when necessary to serve a public purpose.

Can I challenge the condemning authority’s right to take my property?

• Yes. In Texas state court, you may challenge the condemning authority’s taking on several grounds, including the failure to show a public need, to negotiate in good faith with you, or to meet the statutory prerequisites to filing a condemnation case set forth in Chapter 21 of the Texas Property Code.

What happens if I defeat the condemning authority’s right to take my property?

• The court will dismiss the condemning authority’s case. In Texas state court, the court may also award you the attorneys’ fees, expert witness fees, and certain other costs you incurred in fighting the taking under Chapter 21 of the Texas Property Code. The condemning authority may have the right to file a new condemnation action and cure the defects that caused the first case to be dismissed, or it may be prohibited from taking your property, depending on the reason for dismissal.

Do I have to accept the condemning authority’s offer?

• No. The condemning authority’s offer often falls short of full compensation to the land owner. You are entitled to contest the condemning authority’s offer and to receive full compensation.

How much am I entitled to for the taking of my property?

• A land owner is entitled to receive fair market value for the property taken. In cases where only a portion of your property is taken, you are also entitled to recover the decrease in market value to your remaining property resulting from the taking. Market value has been defined by the courts to be the price that a willing buyer and a willing seller would agree on for your property, both having full knowledge of all facts relevant to the transaction and neither acting under duress.

The Right To Condemn

Does the State have the right to take my property?

• Under certain circumstances, the State of Texas and all counties and cities in the State have the right to condemn property necessary for a public purpose without the land owner’s consent. Additionally, many state and local governmental agencies and political subdivisions have been delegated the power to condemn private property for public purposes. However, while a condemning authority may have the power of eminent domain, this fact does not necessarily mean that it has the right to take your property for its project.
• You may challenge a condemning authority’s right to take your property in court. In Texas state court, you challenge the right to take, after timely filing objections to the Special Commissioners’ Award, by filing a verified plea to the jurisdiction. Once you challenge the condemnation, the condemning authority has the burden of establishing that your property is necessary for a public purpose and that it has met the statutory prerequisites to condemn. While the courts often allow a requested condemnation, courts have denied the right to take in numerous cases where the condemning authority’s exercise of eminent domain was not authorized.

Precondemnation Planning

What can I do before my property is condemned?

• There are several actions a land owner can take before his or her property is condemned. One of the most important of these actions is to seek the advice of an attorney who has experience in handling condemnation cases. The actions taken before property is condemned may help or hurt the subsequent condemnation case. In these situations, the right of way agent with whom the land owner communicates will have extensive experience in taking private property.
• Leases and mortgage agreements affecting the property may impact the amount of the final award to which the land owner is entitled. There may be condemnation clauses contained within these documents that protect the land owner, and the land owner should consult with an attorney regarding these issues.
• Even though the property is being condemned, the land owners should continue to maintain the appearance and condition of the property. The condemning authority’s appraisers will be inspecting the property before it is condemned. If you are forced to sell your property through condemnation, you want the property to look as good as possible, just as you would if you were selling the property voluntarily.

What can a landlord and tenant do to avoid disputes over the condemnation award?

• The best way to avoid uncertainty regarding allocation of the condemnation award between the landlord and tenant is to have a clear lease provision called a “condemnation clause.” This clause allows the parties to specify what portion of the award will go to the landlord and what the tenant is entitled to if a taking occurs.
• The condemnation clause should anticipate an allocation of the award for three scenarios: (1) a whole taking of all leased property; (2) a partial taking which effectively destroys or severely damages the remaining property; and (3) a partial taking which has little effect on the remaining property.
• Additionally, the length or term of the lease could have a significant effect on the amount awarded to the landlord or tenant. If you have knowledge of a future taking, it is a good idea to consult your condemnation attorney about updating the lease.

Compensation

If I don’t accept the condemning authority’s offer, how will my compensation be determined?

• If the condemning authority cannot convince you to sell the property voluntarily, it will file a petition in the appropriate court to take your property. Each condemnation case filed in Texas state court first goes through an administrative, or Special Commissioners, phase. The judge will appoint three disinterested land owners, called Special Commissioners, to determine the compensation to which you are entitled. The Special Commissioners will set a hearing date to hear evidence concerning your compensation. The condemning authority must provide you with at least 11 days notice of this hearing. These hearings are somewhat informal, often held in a conference room, and generally last a few hours. After hearing the evidence from the appraisers for the condemning authority and the land owner, the Special Commissioners will typically enter an Award that same day. Under certain circumstances in which you plan to challenge the condemning authority’s right to take your property on the basis that it failed to negotiate with you in good faith, you should not attend the Special Commissioners’ hearing because you may waive your right to make this challenge by attending.

What happens if both parties are satisfied with the Special Commissioners’ Award?

• If both the condemning authority and the land owner accept the Special Commissioners’ Award, then the judge will enter judgment on the Award, conveying your property to the condemning authority upon payment by the condemning authority to you of the amount of the Award.

What happens if one party is dissatisfied with the Special Commissioners’ Award?

• If either side is dissatisfied with the Special Commissioners’ Award, the dissatisfied party may start the second, or litigation, phase of the condemnation case by filing written objections to the Award with the court on the first Monday following the 20th day after the Special Commissioners’s Award is filed with the court. The dissatisfied party must request and make sure that the adverse party is timely served with its objections to the Award. If the owner challenges the condemning authority’s right to take the property, the owner must file a verified plea to the jurisdiction setting forth the grounds for the challenge. If objections to the Special Commissioners’ Award are filed, the slate is wiped clean and a trial is held to determine the amount of compensation to which you are entitled. Your compensation will then be determined by a jury, if either party demands one, or by the judge, if neither party demands a jury.

What happens if the jury verdict is different from the Special Commissioners’ Award?

• If the jury verdict is more than the Special Commissioners’ Award, then, in addition to the amount of the Special Commissioners’ Award it has deposited for your use and benefit, the condemning authority must pay you the difference between the verdict amount and the Special Commissioners’ Award, plus interest at the statutory rate.
• If the jury verdict is less than the Special Commissioners’ Award, then you must pay back the difference between the Special Commissioners’ Award you received and the jury’s verdict. You do not have to pay interest on this amount.

If the case goes to court, is the amount of the Special Commissioners’ Award admissible at trial?

• The Special Commissioners’ Award is not admissible at the trial. When objections are timely filed, the only purpose served by the Special Commissioners’ Award is to set an amount which the condemning authority must deposit into the registry of the court, for your use and benefit, before it can take possession of your property and start constructing its project. You may withdraw the amount of the Award from the registry during the pendency of the case.

Mediation & Getting A Trial Date

What is mediation?

• Mediation is a private, informal dispute resolution process in which a neutral third person, the mediator, helps the parties reach an agreement. While the mediator has no power to impose a decision on the parties, he will listen to the presentations of both sides and then attempt to persuade the parties to settle the case.

Will there be a mediation in my case?

• Judges encourage out-of-court settlements as a means of relieving their heavy dockets. As a result, you can expect your condemnation case to be referred to mediation before it is tried.

Do I need to attend the mediation conference?

• Generally, the order of mediation will require the parties and their attorneys to be in attendance. Courts feel this requirement makes it more likely that a settlement will be reached. For corporations, partnerships, or other organizations, a person who has been given authority to settle must attend.

What is involved in a mediation?

• After all of the parties and attorneys attending are introduced, the mediation will begin with an introduction of the mediator and some background on his experience in litigation and in disputes of this nature. The mediator will then ask the attorneys in an open session to present the respective positions of the parties. Once the attorneys have stated their clients’ positions, the parties will separate into different conference rooms for negotiation sessions.
• The mediator will then meet alternately with the condemning authority and the land owner to talk about the strengths and weaknesses of each side’s case to try to get “movement” from the parties.
• At the conclusion of the mediation, the mediator will prepare a report to the judge. If the case settles, the mediator will record the terms of the settlement and ask the parties to sign it. If the case does not settle, the mediator will inform the judge solely of this fact.

Do I need to say anything at the mediation conference?

• You will not be expected or required to say anything, and, in most cases, your attorney will speak for you. Because statements you make can affect the outcome of the mediation, it is important to discuss statements you would like to make with your attorney prior to mediation.

The Jury Trial

How do I get my case set for trial?

• The court will generally set your case for trial and advise you of the trial setting. If it does not, your attorney or the attorney of another party in the case may request a trial setting, and the judge will then enter an order setting your case for trial.

Who serves on the jury?

• The jury is selected in state court from the licensed drivers in the county in which the condemned property is located. The judge will summon a jury panel of prospective jurors. From this panel, the parties and their attorneys will select 6 people in county courts-at-law (and 12 people in district courts) to decide the case.

• The court will excuse potential jurors for cause or in response to a peremptory challenge. A juror will be excused for cause if he is related to a party or is viewed by the court as being unable to serve as a fair and impartial juror. Additionally, each party to the case is allowed three peremptory challenges, which means each side may reject three prospective jurors from the case for any reason.

How long will my trial last?

Every case is different. The typical condemnation case generally lasts 3 to 5 days.

Will I testify at my trial?

• It will depend on the circumstances of your case. You and your condemnation attorney will discuss whether your testimony is necessary to the presentation of your case. In most cases, your appraiser will testify to his or her opinion of the compensation to which you are entitled. However, the law does allow a land owner to testify as to his or her opinion of value of the property in certain circumstances. In addition, there may be other facts or opinions about which the land owner may testify at the trial.

Attorneys’ Fees And Expenses

• We take on condemnation case representations for land owners on a contingent-fee basis over and above the offer made by the condemning authority. Under this framework, we earn a fee only if we increase your recovery, and our contingent fee applies only to the amount by which your compensation has been increased. You are responsible for paying expenses. Generally, your largest expense will be your fees for expert witnesses, including your appraiser