By Ryann C. Carmody, Attorney at Law
The concepts involved in eminent domain law are complex and confusing. To shed some light, below are answers to some frequently asked questions many people have about eminent domain and the condemnation process.
What is eminent domain/condemnation?
Eminent domain or condemnation is the power to take property for public use and requires just compensation to the landowner. The legislature has adopted legislation that allows the taking of property for redevelopment if the taking removes blight.
Both personal and real property are subject to condemnation. In Missouri, eminent domain proceedings are governed by Missouri Revised Statute §523.000.
Who has the authority to exercise the power of eminent domain?
The legislature has the right to delegate the exercise of the sovereign power of eminent domain. Cities, counties, sewer districts and library districts – to name a few –
have the power. Unless restricted by the constitution, the power is unlimited and practically absolute. The right to exercise the power of eminent domain does not automatically lie in counties’, municipalities’ or public service corporations’ authority.
How will I know if my property is going to be taken?
Pursuant to Statute §523, there are several steps a condemnor must take before your property can be taken by eminent domain. Missouri law requires that the condemnor engages in good-faith negotiations before a condemnation order is entered by a court. You must be informed by the condemnor at least 60 days before the Petition in Condemnation can be filed. Next, you must receive a formal offer letter from the condemnor at least 30 days prior to the filing of a petition. This offer should contain an appraisal by a state-licensed appraiser to justify the offered purchase price. Further, this offer must remain open for 30 days. At this time, you may choose to accept this offer in lieu of further litigation, or you may reject it either in writing or by a lack of response.
What if MSD (Metropolitan St. Louis Sewer District) wants an easement? Is that a “taking?”
Yes. That is a partial taking. You have the same rights as if your property were to be totally taken. However, damages in a partial taking are calculated as to the loss in market value to the land.
What happens if I reject the condemnor’s offer letter?
Generally, in Missouri, the condemnation proceedings are divided into the following categories:
Condemnation Hearing – An evidentiary hearing conducted in court to determine if the condemning authority has the legal right to condemn your property.
Commissioners’ Hearing – At or around the time that the order of condemnation is entered, the court must appoint three commissioners to assess the damage you have sustained as a result of the taking. These commissioners will hear evidence from both parties and make a just compensation determination.
Commissioners’ Award – After the commissioners determine the amount that must be paid for the taking, the award will be filed with the court. The title to your property will transfer when the condemning authority pays the commissioners’ award into the court’s registry.
If you reject the offer, the condemnor will likely file a petition in court. A judge will then conduct a hearing to determine if the condemning authority has the legal right to condemn your property. The judge may then appoint three commissioners to determine the compensation you should receive for the taking. These commissioners then file their award with the court.
What if I think my damages are more than what the commissioners awarded?
Either party can request a jury trial on the damages.
Can the condemnor come onto my property to perform studies before he/she takes the property?
It depends. Oftentimes the condemning authority will need access to the property for surveying, geological or environmental testing. First, you can always allow access to your property. However, if you refuse access, the condemnor can ask a judge to order the access. The courts look to see how intrusive the undertaking will be on your use and enjoyment of your property. For example, courts have found that simply putting land surveying stakes in a property is permissible. Conversely, certain geological and environmental tests may require a more invasive test that could affect the use of the land and the value. Therefore, this type of testing would constitute another taking for which you would be separately compensated.
Ryann Carmody is a partner at Carmody MacDonald P.C. in St. Louis. She concentrates her practice in the area of general civil litigation, including Eminent Domain and Title IX matters. Carmody can be reached at [email protected] or 314.854.8620.
This column is for informational purposes only. Nothing herein should be considered legal advice or as creating an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely on advertisements.
This article was originally published by Saint Louis Construction News and Review on August 19, 2020. Click here to visit CNR.