Eminent domain is the power of the government to take a person’s private property and convert it into public use under the Fifth Amendment.
North Carolina law permits the right of eminent domain, which is the government’s power to seize or “take” your private property for public use.
The North Carolina Supreme Court has defined “taking” under the power of eminent domain as “entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.”
The Supreme Court also explained that the test of public use is not the advantage or great benefit to the public. Rather, an appropriate “public use must be for the general public, not a use by (or for) particular individuals.
Under eminent domain, the government may only exercise a taking power if it provides the property owner with “just compensation.” But exactly what constitutes “just compensation” may not be the ousted property owner’s idea of what would be a fair, reasonable, and accurate reflection of your property’s value.
Here, we will explain how the eminent domain process works, what courts have deemed “just” compensation, and the importance of understanding your rights as a North Carolina property owner.
How Does Eminent Domain Work?
First and foremost, the government cannot simply pull the rug out from underneath unsuspecting property owners: it must give the property owner appropriate notice of its intent to take the property under eminent domain. Further, the government must provide an offer of just compensation based on the fair market value of the property. The offer will include a summary of value, but the property owner can request a full appraisal instead.
Typically, in North Carolina, the state Department of Transportation (NCDOT) will attempt to negotiate the value of your land. A right of way agent, or “ROW agent” is the DOT’s representative who handles the case. The agent gets the DOT’s property appraisal and is in charge of negotiating with the landowner and his or her attorney. The ROW agent will make an offer to the property owner for the property based on the DOT’s own appraisal.
Like any other person who wants to buy a property, the ROW agent’s objective is to take the property for the least amount of money—regardless of whether that’s truly “just compensation.”
Because it’s their full-time job, the ROW agent has done this many more times than the average property owner has. He or she will know things about the process that the average citizen may never learn. As the “little guy” going up against the government, you need your own advocate with years of eminent domain experience and vast knowledge of this process.
Part of this analysis is to hire an independent appraiser to value your property. With this information, you and your attorney can determine if the State’s offer is fair. If not, you can reject the offer and try to negotiate a better one. Finally, if you reach an impasse, you can fight the DOT’s offer in court.
If there’s no settlement, the government will typically take your property by instituting legal action. The government will file a lawsuit and deposit the amount it believes to be just compensation with the court. The laws of eminent domain permit the landowner to withdraw the deposit without giving up any rights to seek additional compensation (provided your attorney files the appropriate motion with the court).
Of course, it’s best to rely on an experienced North Carolina eminent domain attorney to address the issues surrounding the filing a motion to withdraw the deposit, the deadlines for filing a response, preserving your property rights, engaging possible property valuation experts, and developing a legal strategy to bring about the best possible outcome in your case.
Can I Stop the Government from Taking My Property?
You can fight to stop the eminent domain process if the proposed taking fails to satisfy the requirements of a public purpose. If the test is met, the government can’t be stopped from taking your property, but again, you can try to get the best possible price for your property.
North Carolina courts usually order the property owner and the government seeking to take the property to participate in a mediated settlement conference. In this meeting, a neutral third-party will try to bring about a reasonable and agreeable price of settlement. However, the mediator doesn’t have the power to force either party to settle the dispute.
If there is no agreement, a 12-person jury will decide the amount of money to which you’re entitled from the government for the taking of your property.
Contact Our Experienced Real Property Attorneys
There are many complex issues that you must address in the eminent domain process to make certain that you get the highest possible price for your property. This isn’t a do-it-yourself matter like filling in the blanks on a standard form, so don’t try to negotiate with the government on your own.
When it comes to protecting your property, understanding the laws surrounding eminent domain procedure is vital. Even more important is having an advocate on your side who can inform you of your rights as a property owner and help you staunchly protect them.
At Wilson Ratledge, our attorneys regularly advise our clients on the condemnation process in our State and work to ensure that they are positioned to gain the compensation to which the law entitles them. For questions or assistance, one of our experienced North Carolina real property attorneys at 919-787-7711 or via our contact form below. We look forward to serving you.