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Know Your Rights When Faced With Eminent Domain

By Michael P. Bain

You receive a letter from the government, whether it be from the Department of Transportation, the County, a City, or sometimes even a utility. Perhaps you also receive a telephone call or even a knock at the door. The news being delivered may leave you anxious, uncertain, or devastated-- the government needs your land for a construction project. Usually, the first point of contact you have is with a negotiator, someone employed or hired by the government to try and get a good deal on the purchase of your property. Often the negotiator will put pressure on you to give the government a good deal for your property, and sometimes on the spot. The negotiator may threaten a lawsuit or the exercise of eminent domain if you do not agree to sell right away. How can you be sure the price is right and that your interests are protected? Before you sign on the dotted line, you should know your rights and a little about the process.

Government entities, like businesses, operate on a budget. They allocate a certain amount of money to buy up land and rights needed for a project. Government entities, however, are not like businesses when it comes to buying land and rights because government entities enjoy the right of eminent domain. The government does not have to agree to your number but, rather, can take your land if you refuse to sell at a price that fits well into its budget. This "taking" or "condemnation" of your land is accomplished by the government entity filing a lawsuit against the property it needs, along with funds in the amount of what the government's appraiser says is the just and adequate compensation for the land and rights taken. The landowner will get named as a party and brought into the lawsuit, along with any other individuals or entities with rights in the land. Most people do not like the sound of a lawsuit, but it is important to know that a "condemnation" lawsuit is often necessary to ensure that your rights are protected and that the government plays fairly and by the rules.

In 2006, the Georgia Landowner's Bill of Rights was signed into law, creating a series of rules designed to benefit the landowner whose property is needed for a government project. Certain rules apply directly to the offer and negotiation of the purchase of your land. For instance, before the government can take your land or a piece of it outright (as opposed to a permanent or temporary construction easement), the government must first get an independent appraisal of your property. You as the landowner have the right to meet with that independent appraiser and walk your property with him/her. Then, when the government makes you an initial offer (usually through its negotiator), it cannot offer less than its independent appraisal.

The independent appraisal, however, is not always what it seems. Some government entities require "independent appraisers" to be under a long-term contract with them. Others require their own "review appraiser" to review and make or recommend changes to "independent appraisals" before they can be used for offer purposes. Thus, although the purpose of Georgia's statutory requirement of an independent appraisal is to lend legitimacy and trust to the land acquisition process, certain government entities often skirt the rules. Because of this, government entities often make extremely low offers to landowners, well below actual fair market value.

The chances are most of us do not buy homes or property without the help of a real estate agent, an appraiser, or even an attorney. When we are ready to move, most of us would not sell our property without seeking advice or assistance from a real estate agent or an appraiser to ensure we are getting the right price. We probably do not close on the sale of property without consulting an attorney to ensure the sale is done properly. Why should a sale to a government entity be any different?

You do not have to accept the offer that the government puts in front of you. If you are a landowner and you have any questions about your property or rights, the attorneys of Flint, Connolly & Walker, LLP are well-versed in eminent domain law, and we are here to help.

Michael Bain is an attorney at Flint, Connolly & Walker, LLP and assists individuals and businesses in a range of legal matters affecting business, insurance, and real estate. He graduated from the University of Georgia School of Law and has practiced in metro Atlanta for his entire career. 

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