Eminent Domain/Condemnation

WHAT ARE MY RIGHTS?

The United States and Utah Constitutions guarantee important property rights. You can contest the taking of your property, but if a judge rules that your property must be taken, you have the right to receive full compensation for your property. Full compensation requires a practical attempt to make the property owner whole. This means that you are entitled to be put in the same financial position after the taking that you were before the taking.

WHO CAN TAKE MY PROPERTY?

Federal, state, and local governments have the power to condemn private property. This power has been delegated to many governmental agencies such as the Utah Department of Transportation, and, in certain limited situations, to private companies and individuals.

IS THE CONDEMNOR’S APPRAISAL RELIABLE?

Most condemnors hire reputable appraisers, however, the condemnor does not typically hire the appraiser that is known to give the highest value to the landowner when making their initial offer.

CAN THE GOVERNMENT TAKE AS MUCH OF MY PROPERTY AS IT WANTS?

No. The government can only take as much of your property as the court finds is reasonable and necessary to accomplish a public purpose.

CAN’T I JUST GET A FREE APPRAISAL FROM THE UTAH PROPERTY RIGHTS OMBUDSMAN?

Yes and you can generally select the appraiser, however, the Ombudsman – and not you – hires that appraiser. We recommend that you work with an experienced attorney to select the appraiser that will be best for your specific situation.

SHOULD I DO ANYTHING BEFORE MY PROPERTY IS TAKEN?

There are several things you should and should not do before your property is taken:

•  You should avoid taking positions, especially written positions, which may be used against you in the condemnation proceedings.
•  Do not discuss any issue pertaining to the value of your property with anyone without first consulting an attorney. Unlike other areas of the law, in eminent domain the government is your opponent--not your protector.
• You should maintain the appearance and condition of the property before it is condemned and it is in your best interest to have the property looking as good as possible.
• Do not supply copies of leases, expense records, profit and loss statements or similar documents to the government or its representatives until you have consulted with an attorney. Those documents may contain information that can be used to lower or eliminate your claim.

Because some of your actions may help or hurt your case, it is wise to always seek the advice of an attorney when considering pre-condemnation actions.

WILL I BE REQUIRED TO GIVE UP MY PROPERTY?

You will never be required to surrender possession of your property until either you have agreed upon a date or a judge sets a date.

WHAT HAPPENS IF I DO NOT ACCEPT THE GOVERNMENT’S OFFER?

The government will file a lawsuit to condemn the portion of your property needed to construct its public project. You are entitled to a hearing on the government’s right to take your property. If the court grants the government the right to take your property then an Order of Occupancy will be entered. The government will then deposit its offer of “good faith estimate of value” in the court.

IF I WITHDRAW THE MONEY FROM THE COURT, WILL I BE ABLE TO ASK FOR MORE?

Yes. Your withdrawal of the funds initially deposited with the court is without prejudice to your final claim. This means that neither the amount of the government’s deposit nor the fact that you use it during the case can be used against you in the trial. Once you withdraw the funds, however, there is nothing to prevent the government from presenting testimony at trial that is lower than the deposit. Also, once you withdraw the funds, you waive all defenses except the final amount of compensation.