Eminent Domain vs. Condemnation in Texas Real Estate

Eminent Domain vs. Condemnation in Texas Real Estate

You may be faced with a governmental agency or private actor threatening to take your private property under the power of eminent domain. When this happens you have several rights designed to provide protection for your private property or, in the least, provide you just compensation.

What is Eminent Domain vs. Condemnation?

Eminent domain is the power of the state, or an authorized private actor, (the “condemning party”) to take private property for public use. The power is given by the United States Constitution and the Texas Constitution, which both allow the taking of property for public use provided just compensation is given to the owner.

On the other hand, condemnation is the process by which the condemning party exercises the power of eminent domain. It is the formal act to transfer title from the private property owner to the condemning party. This differs from the police power used to condemn properties that are not properly maintained.

The exercise of the power of eminent domain follows a specific condemnation process.  This process includes three phases. First, the actor making the taking must be a state agency or a private entity authorized by the state legislature to condemn property.  Second, the property must be taken solely for public use. Finally, just compensation for the condemned property must be made to the landowner.

The condemning party must have the power of eminent domain.

Often professional agents are used to negotiate an offer under the threat of eminent domain. This may be done unethically by those without eminent domain powers, or just in hopes of avoiding the condemnation process altogether. You are under no obligation to accept this initial offer. If you do not reach an agreement they will have to initiate condemnation proceedings. Employing an eminent domain lawyer early in the process can help protect your property from such unscrupulous tactics.

What is a public use?

Typically, Texas courts will decide whether a taking is for public used based upon the facts and circumstances of the case. Examples of public use include: public projects such as roads, bridges, railroads, airports; pipelines, and utilities; commercial structures such as malls, and stadiums; and public projects such as schools, hospitals, or parks.  You may be able to stop the eminent domain process if the taking does not meet the requirements of being for a public use.  A Hammerle Finely eminent domain attorney can help determine whether the proposed use qualifies as a public use.

What is just compensation?

Just compensation refers to the amount of compensation given to the landowner in return for the title to the condemned property. The amount offered by the condemning party must be “just” as determined by mutual agreement, or the determination of a third party. If a whole tract is taken, the compensation should reflect the market value of the land. If only a portion of the land is taken, however, the compensation amount should include the market value of the portion taken and an amount to cover the damage the taking has on the value of the remaining property.

If you do enter into the condemnation process there is a three-step process for adjudicating just compensation:  First, there is the appraisal and offer by the condemning party.  When presenting this offer the condemning party must provide you a copy of all appraisals the condemning party has obtained concerning your property.  This will help you determine whether the initial offer is just.  You are not obligated to accept the first offer, and often times will be able to secure better compensation by negotiating the first offer or fighting the process.

If you do not accept the initial offer, things progress to step two.  Here things move to a special commissioners’ hearing.  This is initiated by the condemning party and is held in the county the property is located.  The special commissioners determine the just compensation warranted, typically based upon information provided solely by the condemning party.  Once the condemning party pays that amount to the court, they will have the right to take possession of the property unless you take the case to court to challenge the award.

Get Legal Assistance from Hammerle Finley Law Firm

If you wish, you can proceed to step three and fight the award in the courts.  At this point it is important to have a knowledgeable Hammerle Finley eminent domain attorney. There are several critical deadlines during the condemnation process and an experienced eminent domain attorney can help you avoid losing your opportunity to receive adequate compensation for your condemned property.