Eminent domain and condemnation: 5 essential steps to protect your commercial property.

Author:Davis, B. Joan
Position:2015 Law Journal

There is nothing simple or painless when the Department of Transportation (DOT) or a municipality needs your land or building for a road-widening project or to construct a new road. Whether you are a shopping-center owner, national retailer, bank, restaurant or small-business owner, there are some basic steps you can take to protect your business and commercial property interests.

Eminent domain is the government's legal right to take your private property for public use. The process begins when you receive a notice from the taking authority (usually a state or local government) indicating that it intends to acquire some or all of your property for a public project. The government or its agent must submit a monetary offer to purchase the property it needs. If you do not accept the initial offer, the government can proceed with a "condemnation lawsuit," which is a lawsuit to seize your property. You may negotiate a settlement of the lawsuit or demand a jury trial to determine your "just compensation." What essential steps should you take when this happens to you?

Step 1: Legal analysis

If you receive notice that a roadway project is going to impact your commercial property, it is important that you seek legal advice from an attorney experienced in eminent domain law. Such an attorney will help you determine your legal rights, maximize your recovery and, in the process, protect your remaining property's value and handle issues that may arise during the construction. It is important to seek legal advice as soon as you know that a project will impact your property. If you wait until you are served with the condemnation lawsuit to get a lawyer, you will drastically limit what your lawyer may be able to do to help you. Many law firms will work on a contingent fee basis (meaning you do not pay for the services until you are compensated for your land, buildings and property rights taken--and then the fee is based on the amount of money you receive from the government). Other firms will work on an hourly basis to help you through the process. Talk with your attorney about a fee arrangement that best suits your needs.

Step 2: Road design

In the vast majority of cases the government will only need a portion of your property. In those situations the roadway's design can be critical to how your remaining property functions after the work is done. Most commercial property owners and tenants are concerned about how the new road design and traffic patterns...

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