Frequently Asked Questions About Eminent Domain And Condemnation

With over 20 years of experience defending landowner’s rights in eminent domain and condemnation cases, Matt Hurt has helped clients fight the government – and win. The questions below are some of the most frequently asked by clients who sought legal protection for their property rights. Contact Law Office of Matt Hurt, PLLC, to find out if Matt can help your specific situation.

How are the terms “eminent domain” and “condemnation” similar or different?

The two are closely related; the first one sets the scene for the second one. Eminent domain is the power of a government entity to seize private properties for public use or a public purpose. Condemnation is the descriptor of the legal process through which the government (or quasi-governmental entities) take your property. Eminent Domain is the description of the power; condemnation is the process through which that power is exercised.

Why and how can private companies or Utility Districts use the State’s Power of Eminent Domain?  What types of projects can they condemn for?

It may seem clear to you that the State of Texas or a City or a County of the State can use eminent domain power to condemn private property. But it may be very confusing why an oil and gas pipeline company or an electric utility can condemn.

In general, a private company can receive the power to condemn through statutory delegation of that authority from the State of Texas through laws passed in the Legislature.

The State of Texas is a sovereign state with the inherent Power of Eminent Domain. As the sovereign, it can and has delegated its power to condemn to political subdivisions in the State, such as Cities, Towns, Counties, etc. But the State has also delegated the power to condemn to all manners of other quasi-governmental entities such as Water Districts, Utility Districts, Flood Control Districts, and the like. The State has even delegated the power to condemn to certain gas pipeline companies and electric transmission line companies.

However, in all cases, whether the taking is brought by the State, a County, a City, or anyone claiming to have the power, the condemning authority must first prove that the State of Texas delegated the power to that entity, for the particular project in question. And, further, that condemning authority must also prove that the application of the power in your specific case is for a legitimate public purpose.

The legal issues related to “right to take” and whether a particular project is a public use or not are very complicated legally and factually.

Texas landowners and politicians have fought at the Legislature to pass bills to limit various uses of the Power of Eminent Domain, including passing (or trying to pass) laws explicitly stating that Eminent Domain may not be used if the purpose is to benefit another private property owner or to confer an economic benefit. But these new laws are largely untested and courts have wrestled with how to apply them while still preserving the State’s sovereign power and its power to delegate its authority for public projects.

For example, Texas loves the oil and gas industry. Sometimes the Courts and Legislature prefer oil and gas interests over other private property interests, regardless of the legality and pure application of constitutional principles.

As another example, one person’s taking to confer a benefit on a residential real estate developer (for a profit) is a public need and necessity of a Town or City trying to provide utilities for new neighborhoods or schools. The facts can be complicated in nearly every case.

If you are concerned that a proposed taking of your land may not truly be for a public project, contact Matt for guidance.

How does the Constitution address eminent domain power?

The Texas and United States constitutions provide two categories of important protections for landowners. First, the text of the constitutions requires that the taking be necessary for a public purpose (or else the power to condemn does not vest) and, if the taking is for a public purpose, then the government or condemnor must pay the landowner for the taking. These seem like simple concepts, but they are open to limitless complications and layers of analysis.

What is critical to understand is the fact that no matter what statutes in Texas say concerning granting the government the power or right to condemn, the statutes are always subject to interpretation in light of the constitutions. Texas statutory law cannot impinge on a landowner’s rights (or grant rights to the condemnor) if the constitutions say otherwise. Condemnor’s like to hang their hats on laws that they get their lobbyists to pass in Austin, but those laws never take away the constitutional rights you have.

Concerning the second issue, compensation:

According to the Fifth Amendment to the U.S. Constitution, private property must not be taken for public use without “Adequate Compensation.” The Texas Constitution in Article 17, Section 1, states a compensation standard with different terms: Property may not be taken for public use without “Just Compensation.” Words have meaning. There are no cases in Texas state courts that address the difference, if there is one, between “Adequate” and “Just” compensation, but clearly there must be a difference. For decades the Texas courts “assumed, without deciding” that the terms were synonymous, but, as with many areas of eminent domain law in Texas, there are differences that may not be different.

Regardless of the differences, even if a Texas governmental entity tries to condemn your property, you are entitled to protection under BOTH the Texas Constitution and the Constitution of the United States.

Why do governmental agencies (and other entities with delegated authority) use condemnation to acquire property?

Traditionally, the condemnation of private properties by governments has occurred in connection with planned infrastructure projects. Government bodies use the condemnation process to comply with the constitutional requirement regarding adequate compensation for landowners.

Who has the power to seize private property?

Any government body can do so, as can any private entity authorized by the government to do so for the sake of building public purpose projects. Texas law requires entities that purport to have the right to condemn to register and put their names on a list with the Texas Comptroller. The list is accessible here. But that list is not conclusive or determinative as to the issue of whether the entity truly has the power to condemn in general, or specifically whether the taking in a particular case passes the constitutional protections that the taking be necessary for a public purpose.

What are the most common types of condemnation projects?

Common examples have included roads, highway projects (including ramps, bridges and drainage structures), electric transmission lines (single poles, double poles and lattice towers), oil/gas related pipelines, water pipelines, new reservoir or lake projects (for recreation and/or water supply needs of a growing Texas), landfills, dams, schools, municipal or county buildings, parks, railroads, and high speed rail projects, to name a few.

How does the condemnation process begin? What are the steps in a condemnation case?

Texas law provides a statutory scheme for the government to exercise the Power of Eminent Domain through the condemnation process. In general, the statutory scheme is set forth within Chapter 21 of the Texas Property Code. A link to the statutes is here.

But there is far more to successfully handling a condemnation case than reading and understanding Chapter 21.

Initial and Final Offers, Landowner’s Bill of Rights—Tex. Prop. Code § 21.0113.

Before the government can formally file the condemnation case against a landowner, the government must provide a written offer for the property rights proposed to be taken. The government must also follow up the initial offer with a “FINAL OFFER.” The government must include an appraisal supporting the Final Offer along with that offer. The government must also provide a copy of a publication known as the “Landowner’s Bill of Rights.”

The sooner you hire a good and experienced eminent domain trial lawyer during the process, the better off you will be. Matt Hurt has talked to and seen many landowners over the years who do not want to hire a lawyer or simply do not want to be entangled in a lawsuit and who have tried to “work it out” with the government on their own. Matt’s hat is off to those who can accomplish this AND obtain the best outcome possible. But too often, Matt finds himself relaying the same message to landowners: Trying to make decisions about your life or your property based on promises from the government is foolish—even if they think they are being honest with you, the person you may be dealing with or talking to usually is not the decision-maker. Regardless, oral promises or statements of “what we will do,” are simply not enforceable. Once the government has your land and has paid you for it by agreement, very little can be done if the government changes its plans later.

Starting a condemnation case.

The condemnation procedure in Texas is divided into two phases. The first phase is an “administrative” phase where the government institutes the lawsuit against the landowner and asks the Court presiding over the case to appoint Special Commissioners to hold a “Special Commissioners Hearing.” In this hearing, the government puts on evidence (almost always appraisal testimony) concerning what the government thinks it owes the landowner for the taking. The landowner has the right to appear and put on evidence as to what the landowner believes they should be paid for the taking, but there are often very good reasons for a landowner to NOT APPEAR and NOT PUT ON evidence of what the landowner believes is Just Compensation. An experienced condemnation trial lawyer knows the risks of participating in the first administrative phase. Matt rarely believes that fully litigating at the Special Commissioners Hearing phase of the case is ultimately beneficial. You may win a battle, and that may provide some benefit, but ultimately you still have not won the war.

After the Special Commissioners Hearing, either party (government or landowner) can object to the award. Once a party objects, the entire case starts over in the trial court. This is where the war is fought.

Once the case is in the trial court, the tables turn on the condemning authority. The rules that were in their favor before in the administrative phase, apply to both sides the same. The parties, if they cannot settle the case early on, will most likely agree on a trial date (which can be a trial before a jury if either party wants that). Next, they will enter a schedule under which discovery is taken and the parties engage experts to provide relevant (hopefully, anyway) opinions. Then the parties get ready for trial. This second stage is the first time the landowner can force the government to answer questions about the project, the taking, the necessity of the taking, etc.

Although this is not true in every case, because of Matt’s engineering background and years of experience handling eminent domain cases, he most often believes that it is unwise to settle your condemnation case until he can obtain relevant information for you from the government regarding your case.

You may say, “The engineer on the project has always been open with me,” or has “always shared drawings with me.” However, Matt has seen too many instances in which the government changes its plans AFTER a landowner has already settled their takings case. If that happens, there is nothing the landowner can do about it. Matt will get as much information as is reasonable for him to understand the project and its impacts on your property. And if the government cannot tell you or Matt what it is really planning to do with your property—well that is a big problem for the government.

Do you have to negotiate with a condemning authority or accept either their initial or final offer?

No. Not just no, but “Hell No.”

Matt has spoken at continuing legal education seminars in the past on eminent domain. In preparing for one such course, he found a study performed by the Federal Highway Administration years and years ago that showed that, in several States in the United States, roughly 80% of all highway right-of-way acquisitions were completed by the government before a condemnation case was filed.

This is a statistic that should scare any landowner or landowner’s lawyer. In other words, four out of five of the landowners in those studies settled with the government without forcing the government to file a condemnation case, and possibly without any hard details and discovery obtained under oath about what the government is really up to with its project.

In recent years, Matt has seen far too often that the State of Texas (in particular) tries to institute condemnation proceedings for property years and years before the engineering plans for the project are finished. How can anyone know what the impacts to a property are when the government does not even know what its building (for sure)?

The reality is that the government uses contracted right-of-way agents to reach out to you, send the offers, Final Offer, and generally to scare you or at least pressure you into settling with it before it has to sue you in condemnation.

In general, if something is good for the government, it is not good for you. The government can never offer you less than its Final Offer. So taking your time and seeking wise counsel from an experienced eminent domain lawyer is well worth your time. You do not know what you do not know.

What happens if the landowner does not intend to accept the condemning authority’s initial purchase offer?

Nothing. The condemning authority will send the Final Offer required by Texas law, along with the appraisal (if they have not already sent the appraisal).

Can a landowner stop a condemning authority from taking their property?

Sometimes, but rarely. A taking will not succeed if the taking is not for a legitimate public use.

How are “Just” and “Adequate” compensation calculated?

In most cases, there are two alternative methods of calculating what a landowner should be paid for a taking. The most simple method is to calculate the value of the “part taken,” or the part being acquired by the government. In many cases, the “part acquired” is a small strip of land or a piece of land that is not, standing alone, an independently marketable piece of real estate. In condemnation, we speak in terms of the “highest and best use” (i.e., most valuable, legal, feasible use) and in terms of “economic units” of land that are independently marketable at the highest and best use.

If the land the government is taking is not, in its shape or size, independently functional or marketable at its highest and best use, then the government is required to value the land taken as a part of the larger unit that is the highest and best use.

What does all of this mean? It means the government cannot condemn 30 feet off of your frontage along an existing road (which could be a landscape buffer or parking or on-site circulation or fire lane) and value it as if someone would pay you for just the 30-foot strip because the reality is that strip may not be saleable without at least some of the adjoining part of the property. So the government should figure out the market value of the entire property and pay you, at a minimum, the pro-rata portion of the land it is taking.

However, in many instances the government intentionally tries to value the part being taken as a part of a larger parcel that is much larger than what smaller parcels would sell for. An example is when the government is condemning a strip of land along a busy street from a landowner who happens to own 400 acres along the road. In that case, the government often tries to value the taking as if the entire 400 acres was the economic unit at the highest and best use, when in reality, the landowner would sell off the frontage for much higher commercial values.

The second method of compensation in a condemnation case is what is known as the “Before and After” method. This method is appropriate when the government causes “damages” (i.e., a reduction in the unit value) of the remaining land that the landowner is left with after the taking. Legal authority for this second method of compensation is found in many Texas cases, including State v. Petropoulos: “The measure of compensation in a partial-takings case is “the market value of the part taken plus damage to the remainder caused by the condemnation.” State v. Petropoulos, 346 S.W.3d 525, 530 (Tex. 2011) (quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 456 (Tex. 1992)). Another formulation of this damage measure is simply the market value of the Whole Property Before the taking, minus the market value of the Remainder Property, After the taking.

Easy examples of cases with “Remainder Damages” where the “Before and After” method of valuation should be considered:

• When the taking leaves property without access to a public right of way.
• When the taking leaves property landlocked.
• When the taking takes all of the parking for a business—leaving the buildings or other improvements worthless or at least much less valuable.
• When the taking renders the remaining property out of compliance with zoning or fire code ordinances. In those cases, sometimes the only solution is to raze the improvements to make the land suitable for redevelopment.

Unfortunately, far too often, the government’s appraisers either fail to recognize these situations, or sometimes they are expressly instructed by the government to ignore these situations. This forces a landowner to “lawyer up” just to enforce the landowner’s rights that were supposed to be guaranteed by the Constitution of the United States and the Texas Constitutions.

Having an experienced condemnation trial lawyer with a civil engineering background who can recognize these technical real estate issues (and frequent engineering issues) is very helpful to maximizing the recovery to approach the amount the government should have offered you in the first place.

Do condemning authorities sometimes offer less than market value for the property they are targeting?

Yes. Perhaps after all these years Matt is growing cynical, but a better question might be: “Do condemning authorities ever often true Just Compensation for a taking?”

Matt will look at your case, for free. If you have an offer that is fair or very close to fair, he will advise you of this and inform you that your situation may not merit representation by an experienced trial lawyer in eminent domain. He wishes that this happened more often than it does.

How should you choose a legal professional to represent you in an eminent domain case?

In recent years, it appears that many lawyers with little or no experience in engineering, real estate, or eminent domain have dipped their toes into trying to represent landowners in condemnation cases. Many of these attorneys are really good at marketing. They may be really good at mailing glossy hand-outs and pretty pictures to people they think are going to be hit by condemnations. Not all of the lawyers that market are inexperienced—several very qualified eminent domain attorneys have been forced to market for specific projects simply to make sure that landowners are aware that very good lawyers are out there to help. But a landowner receiving marketing information should be diligent in vetting counsel.

A landowner should find an attorney who mirrors their goals for the case, but who also is experienced, has proven results, has trial experience for landowners, and knows what to do. Look for a lawyer who has verifiable, in-depth knowledge in this area of the law, peer-recognition such as being selected for inclusion in Texas Super Lawyers, and of course a strong track record of successful case outcomes. Matt was trained as a civil engineer and has litigated condemnation cases exclusively for landowners for at least the last 13 years in a row.  He also has been selected for inclusion in Texas Super Lawyers in the area of eminent domain for the past ten consecutive years, during which time he only represented landowners.

Many eminent domain lawyers who do not have enough business try to work for both condemning authorities and landowners at the same time. They may handle pipeline cases for the pipeline companies, but try to represent landowners in highway takings cases, or vice versa.

Matt has exclusively represented landowners, since at least 2011.

Get Answers To Your Questions About Your Property Rights And The Government’s Taking Of Property

Call 214-302-0557 or send an email inquiry to request a consultation with attorney Matt Hurt in Prosper, Texas, serving the entire state of Texas.