Texas landowners enjoy several legal rights and protections. However, there are times when a federal, state, or local government announces its intention to seize private property and convert it for public use. This legal authority, known as eminent domain, allows these entities to compensate property owners in exchange for their land as they move forward with projects that benefit the community or public in some way. For example, freeway expansion projects, transportation improvements, and even public utility projects may justify the seizing of private property. Once the entity exercising its eminent domain authority identifies the private properties it needs to move the project forward, it may initiate the condemnation process to inform landowners of its intention to take the property in exchange for compensation. This condemnation letter typically includes a settlement offer—but how is this amount of compensation calculated? Below is a brief exploration of how compensation claims work in condemnation matters and the steps Texas property owners can take to ensure they obtain a fair and favorable settlement in exchange for their property.
What Texas Laws Say About Eminent Domain and Condemnation
Texas recognizes the rights of private property owners, and its laws reflect a commitment to upholding such legal protections. Title 1, Section 17 of the Texas Constitution states, “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for: (1) the ownership use, and enjoyment of the property, notwithstanding an incidental use, by: (A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law; or (2) the elimination of urban blight on a particular parcel of property.” Essentially, any authority exercising its eminent domain power must provide “adequate compensation” to the property owner in exchange for their land.
Defining “Adequate Compensation” in Texas Condemnation Cases
The term “adequate compensation” tends to be overly vague, leaving room for the condemning authority to make a compensation offer that undervalues the property’s total worth. For the most part, “adequate compensation” typically refers to a property’s market value, which case law has defined as “the price the property will bring when offered for sale by the one who desires to sell, but is not obligated to sell, and is bought by one who desires to but, but is under no necessity of buying.” In condemnation matters, the market value of the land being taken is not always determined by the land’s current usage; instead, Texas law allows the consideration of the highest and best use to which the land can be adapted to inform the market value. And, “adequate compensation’ also includes any damages that the project has imposed upon the land not taken. This element of adequate compensation is known as damage to remainder and it is frequently omitted from the settlement offer because most people do not know they are entitled to be paid for land not taken. These damages present themselves in many ways, including but not limited to loss of or interference with access to from the remainder, change of the flow of surface water on the reminder, loss of view, noise, and other undesirable conditions that affect the remainder in ways that are unique and different from the community at large. The absence of this element of damage from the settlement offer causes the offer to be very low and often shockingly low. An experienced condemnation attorney can greatly increase your award of “adequate compensation.”
How the Condemning Authority Appraises Your Property
First, the market value of your property depends heavily upon whether all of your land in a certain tract is being taken or whether only a portion of the land is being taken. These are referred to respectively as a total or partial taking. For the most part, condemning authorities consider three determining factors when arriving at a compensation amount: (1) the value of the parcel being taken at its highest and best use, not its current use; (2) the injury to your remaining property (also called “damage to the remainder”); and (3) the benefit to your remaining property (also called “enhancement” or “special benefits”). When the condemning authority makes their offer, they should support these amounts with an appraisal but, in practice, it is not unusual for that appraisal to be incomplete and therefore low.. As soon as you receive this appraisal, work with your trusted Texas condemnation lawyer to determine whether all the legally compensable aspects of your land’s market value have been addressed and considered. Should you find that some considerations have been overlooked, you and your lawyer can get your own appraisal.
Considering the Highest and Best Use of Your Property
One area where the appraiser’s conclusion may lead to the undervaluing of your property is neglecting to consider the land’s highest and best use. Some condemning authorities only consider the property’s current value and fail to use the land’s highest and best use to arrive at a fair amount of compensation. A comprehensive appraisal should look at the reasonable, probable, and legal use of the property that is physically possible, appropriately supported, and financially feasible, resulting in the highest value. When you and your condemnation lawyer review the appraisal, be sure to look for this essential element because it is often missing from the condemning authority’s appraisal, which results in a low settlement offer.
How an Experienced Texas Condemnation Attorney Can Help
Facing a condemnation case can be overwhelming and stressful, especially if you are unfamiliar with your rights as a Texas landowner. However, you must recognize that you do not have to move through this confusing process alone. Enlisting the guidance and support of a trusted Texas condemnation attorney is the best way to ensure you understand your legal rights at every step of the process. Together, you and your attorney can assess the details of your situation and work to obtain the fair and favorable compensation you deserve. Landowners who try to navigate a condemnation case without an experienced attorney almost always leave a lot of money on the table.
If you are struggling with an eminent domain or condemnation matter, the dedicated legal team at Sewell Sewell Beard LLC is here to help. Call our Alabama office at (205) 544-2350 or our Texas office at (972) 777-5390 to speak with a knowledgeable condemnation attorney today.
