Come and Take It (If You Dare): Fighting for Your Rights in a Condemnation Lawsuit
Most condemnations begin with a letter or knock at the door. The taker or, more often, a land-acquisition agent shows up or sends you a letter asking for permission to survey and inspect your property for a particular infrastructure project. Even if the condemnor is just asking to inspect and survey your land and hasn’t yet set an offer, you should still call an attorney. Before letting anyone on your land, you’ll want a survey-access agreement in place, which will lay out (1) when the survey and inspections will happen, (2) who is allowed on your land, (3) what kind of work will be done, (4) what activities are prohibited on your land, and (5) what kind of insurance will be in place to protect you if someone gets hurt during the process.
Following this inspection, the condemnor has to send an initial written offer, provide you (the landowner) with a copy of the Texas Landowner’s Bill of Rights at least seven days before issuing a final written offer, provide the landowner with a copy of a written appraisal by a certified Texas appraiser (either before or together with providing a final written offer), provide a final written offer and copy of the deed, easement, or other instrument that would transfer the property rights sought, etc. If you read our prior blog post on the early stages of the condemnation process, then you know that (1) you should not accept this offer, and (2) any deadlines stated in the offer are fake (meaning that you can, and should, completely disregard them).
If you don’t accept the initial or final written offer (or negotiate a better deal), then the taker may then file a condemnation lawsuit—and you become a defendant in a lawsuit. Most people—over 90% on many projects—simply accept the taker’s offer or work out a deal that still leaves a bunch of money on the table. Until this lawsuit is filed, please: Don’t be fooled. Don’t take the offer. Don’t fall for the deadlines in these initial letters.
After the lawsuit is filed, the court appoints three landowners who are residents of the county where the property is located—and these three people become the “special commissioners” in a one-day administrative trial where the only issue is the amount of compensation that the landowner should be paid. An administrative trial is similar to a trial in court, except its more informal, with more flexibility in procedure and less time involved than a judicial proceeding.
Landowners are not required to attend the administrative hearing, and often there are actually good reasons not to attend. For example, they might not want to educate the taker on the problems with the taker’s case, including problems with its appraiser and appraisal report. Or landowners might not want to show the strength of their case. After all, why educate the taker, when either side (the taker or the landowner) can simply object to the special commissioners’ award of compensation, have that award completely wiped out, and take the case to court for a brand new trial where neither side is allowed to talk about what the commissioners awarded? Some things are better left unsaid, and that certainly applies here.
At the end of the special commissioners’ hearing, the commissioners will issue an award of compensation. What happens next is really important. First, the taker deposits the amount of the award (or deposits a bond for the award) in the registry of the court (the Court Registry is a division of the court responsible for managing certain deposits of funds). Then, the taker can take immediate possession of your property. Yes, immediate possession. You may object to the whole proceeding, arguing that the taker doesn’t really have a right take the property—that the taking is not for a public use or that there’s a lack of public necessity. But unfortunately, the deposit entitles the taker to immediate possession of your property anyway.
The deposit is important for another reason: in most cases, it sets the date on which the taking actually happens and therefore the date on which the property will be valued in calculating just compensation. In other words, the date that the taker deposits the funds with the Court Registry is considered the official date that your property was condemned (even if, for example, the taker doesn’t actually take immediate possession of your property that day).
Either side may object to the special commissioners’ award, and these objections (as long as they are timely filed) send the case to the trial court, and your condemnation case then becomes a regular civil lawsuit. Either side can ask for a jury; landowners almost always do. Most cases ultimately settle before trial. Some don’t. And if the trial judgment is appealed, then the case can go through one or more appeals—meaning the whole process from the initial written offer to the final appellate mandate can take several years (though the taker still technically has possession of your land from the day it deposits the funds).
Experienced legal representation is important through each step of this condemnation process. The deadlines for paperwork can vary and are often crucial. Ensuring that every phase is successfully completed is essential to win fair compensation or fight the right to condemn in court. Don’t back down. Stand up for your rights. Let them know—they can come and take it—but not without a battle first.
Cobb & Johns are Special Forces for Complex Property and Government Disputes.