Articles Posted in Eminent Domain Law

Underwood-Blog-Images-300x300A temporary construction easement (TCE) is a specialized form of easement that a public agency frequently uses as part of an eminent domain project when it “seeks to obtain exclusive possession of a portion of the property for a significant, albeit temporary, period of time.” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 199.) 

This post will seek to address those issues which commonly arrive in connection with TCE’s and how they may affect you. 

What is an Easement?

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Yes. But it is a complex affair. Eminent Domain proceedings take on a unique structure with expert testimony as the backbone for the determination of fair market value. Neither side of the litigation has the burden of proof on this issue of just compensation, and unlike the traditional civil court case, the Defendant presents their evidence first. (Code. Civ. Proc. § 1260.210.)

Additionally, judges will often place limits on what a homeowner may testify to and can screen the witness beforehand to ensure that they’ll be employing a valid methodology on the stand. Taken as a whole, the process can be quite daunting to the layperson. This post will therefore look to the common issues and questions which arise regarding testimony in eminent domain.

The Importance of Testimony in Eminent Domain Proceedings

Books stacked on a desk with a lawyer's gravel.Pre- judgement interests are accrued interest on judgement amounts. Eminent domain is when the government “takes” private property for the public’s use and then owes fair and just compensation to the original private property owners. An eminent domain award is the court-ordered judgment amount that is based on the fair market value of the property owed to the private property owner. 

Generally speaking, eminent domain awards must be paid out to the private property owner before a property’s title can be transferred or the government can take physical possession of the property. Read on to understand what both pre-judgment interests are and eminent domain awards contain.

What is a pre-judgement interest?

Image of Gavel, and Constitution for blog image. ​​Can a property owner sue for inverse condemnation when the government refuses to permit development? Underwood Law FirmIn certain situations, it is possible for a property owner to sue the government for inverse condemnation when the government refuses to permit development, and that refusal results in a “taking” under the United States constitution. 

If the city, state, or federal government refuses to permit development, it must take away all or substantially all the reasonable use of the property in order to form the legal basis for an inverse condemnation lawsuit. Then, the basis for inverse condemnation is formed on the basis of the government’s refusal to permit development and this can be a powerful legal remedy for property owners.

The lack of reasonable use of the property is viewed with consideration of all of the impact on the personal land owner’s land, in order to substantiate an inverse condemnation claim against the government. 

A lawyer's desk with scales in front and a lawyer's signing a paperwork behind it.
The acquisition of private property for eminent domain usually proceeds on a long timeline. Before the government actually uses eminent domain to acquire private property, there is a substantial amount of planning. During the pre-condemnation period, which can stretch for years, a governmental entity often has the opportunity to make land use decisions about property that it intends to acquire.

While there is nothing out of the ordinary with making land use decisions pending condemnation, per se, it can become problematic when those decisions lower the value of the land that will eventually be taken. In those situations, there is a question about whether the property owner in that situation can recover from the diminution in value.

Unreasonable Delay is Compensable

Aerial view of land as a background image with texts about eminent domain
As if eminent domain is not bad enough, and after you’ve gone through the process, the government wants to tax you on the land it made you sell. Savvy property owners, however, can limit their tax liabilities through the use of a 1031 exchange process.

Can a property owner limit the effects of eminent domain?

Internal Revenue Code section 1033 permits the owner of property taken by eminent domain to avoid income tax liability by purchasing qualified replacement property within a specified time following the condemnation.

Business man handing over an envelopment to another man inside the office
The purpose of this post is to address the process where a governmental entity makes an offer to purchase property in contemplation of the later use of eminent domain.

This post will address the rule that applies for offers prior to eminent domain, known as “pre-condemnation offers,” address specifics applicable to business, and then contemplate some difficult questions.

Eminent Domain Compensation

artwork illustration of a house with 2 persons splitting up with a broken heart.
So, You Bought a House with Your Boyfriend

As a millennial, we’ve faced financial challenges different from all those before us. We graduated college with more debt into the harsh job market of the Great Recession, and then have had to compete during one of the hottest housing markets ever. So, many of us have had to do things differently.

We’re having children later, getting married later, and maybe buying real estate before getting married. What happens, then, when you buy property with someone that you’ve decided is not going to be part of your long-term plans, and now you cannot agree on what to do with it. You’ve fought, you’ve negotiated, and now you just want to move on.

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This article provides insight into how the partition process works so that you can know what to expect, and hopefully navigate the process more smoothly. The typical steps for a partition lawsuit are described below.

Sometimes, when you inherit real estate together with another family member, or you buy an investment with a partner, the relationship deteriorates and the parties cannot agree on what to do with the property. When you reach that situation, then a partition lawsuit is something you should consider.

The Partition Lawsuit Steps

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For many of us, real estate is our most valuable asset and the thing that we rely on to provide security for retirement. It is also our passion, where we can use our creativity to make our mark on the world. When we receive notice that it may be the subject of an eminent domain action, however, the unknown elements of the process can be a source of great anxiety.

This article provides insight into how the eminent domain process works so that you can know what to expect, and hopefully navigate the process more smoothly. The typical steps for the eminent domain process are laid out below.

The Eminent Domain Steps

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