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Eminent Domain and Condemnation FAQs

Eminent domain refers to the power of a local, state, or federal government to take private property for the purpose of “public use.” Private entities with permission from the government can also acquire private property through the power of eminent domain.

Regardless, landowners must be given “just compensation” for their property, which is protected by not only statute but also by both the U.S. and Texas Constitutions.

Condemnation refers to the actual process of taking private property for a public purpose. To condemn property in Texas requires an organized series of appraisals, negotiations, and even hearings. Hiring an attorney who focuses on eminent domain law can help you navigate this challenging and sometimes complex process.

An eminent domain notice lets you know that a governmental or other authorized entity is interested in acquiring your property. 

If you receive an eminent domain notice, do not panic. Consult with an experienced lawyer as soon as possible. A competent attorney who focuses on condemnation cases can provide valuable advice and help determine the next steps. 

While it may seem like eminent domain laws give others the right to take your property at any time for any reason, strict laws are in place to prevent such actions and ensure that the government’s power to take land is limited.

The legal basis in Texas for the power of eminent domain, as well as a landowner’s protection regarding the use of this power, rests in the U.S. Constitution and the Texas Constitution. The Fifth Amendment of the U.S. Constitution states that private property cannot be taken for public use without just compensation. Along the same lines, Article I, Section 17 of the Texas Constitution provides that property cannot be “taken, damaged, or destroyed” for public use without adequate compensation.

These constitutional provisions provide protection for landowners. So, if you’re facing the threat of condemnation under eminent domain, a lawyer experienced in this process can help protect your rights.

Establishing that the property will be used for a public purpose is one of the critical factors of acquiring property through the power of eminent domain. 

When a piece of property is obtained for public use, it means the property will benefit the public through a variety of purposes, including:

  • Roads
  • Parks
  • Pipelines
  • Railroads
  • Schools
  • Governmental buildings
  • Airports
  • Hospitals

If your property is taken under the power of eminent domain or the threat of condemnation and is not used for a public benefit, you may have certain remedies under the law. 

The Texas Landowner’s Bill of Rights provides property owners with several protections, including:

  • The right to just compensation for any property condemned for public use
  • The right to receive advanced notification of interest in exercising eminent domain
  • The right to have an adequate assessment of the property to receive fair compensation
  • The right to engage in negotiations with the condemning authority
  • The right to a hearing in front of a panel before the condemnation of the property

Additionally, the entity that wishes to condemn the property must either be a governmental entity, or another party given special rights by the government, and the property must be used solely for a public use or purpose.

As a property owner, you also have the right to hire an attorney to guide you through the eminent domain process. Having a skilled condemnation lawyer on your side can help ensure fairness throughout the process. 

When an entity offers to purchase land under the threat of eminent domain, it must make a “bona fide offer.” The amount in the offer must be based on a proper appraisal completed by a certified appraiser hired by the interested party. 

Any offer must include the fair value of the property taken, the value of the damage to the remaining property’s value, if any, and the cost to remedy any physical damages done to the property as a result of the project’s construction. However, one of the biggest issues with condemnation is actually receiving adequate compensation for all of the damages resulting from the taking. 

What might be presented as “fair value” can be quite different from the actual value of the property taken or the damages done to the property by the taking. Therefore, you may receive an offer that is much less than what you would expect or be able to get for your property on the open market.

For this reason, an attorney experienced in the eminent domain process can help arrange another appraisal for the land and negotiate with the taking entity to help make sure you get the compensation you deserve.

Under the law, you are fully within your rights to handle the condemnation of your property without legal representation. However, it is usually in your best interest to consult with a qualified attorney as early as possible in the process to protect your rights and ensure you get just compensation for the taking. Additionally, if you encounter any issues along the

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When a governmental entity is interested in taking your property via eminent domain, there are certain steps that must be taken.

An interested party typically starts by:

  • Obtaining property information, including a full property description 
  • Checking the title history on the property
  • Hiring a surveyor to survey the property and the land it is interested in acquiring
  • Hiring a licensed appraiser to perform an appraisal on the property

From there, the government or authorized private company will likely try to move as quickly as possible to secure your property. Therefore, it is critical to speak with an eminent domain lawyer as soon as possible. 

If you’re worried the government can take your property without fair negotiation, do not be concerned. Under Texas law, governmental entities interested in taking property by eminent domain must negotiate with property owners and must certify that they have done so. 

This is all part of demonstrating a good-faith effort to reach an agreement for the purchase of the land. However, what a taking entity believes is a “good-faith effort” and what you would expect is oftentimes very different.

Unfortunately, sometimes it is not possible to reach a fair agreement through simple negotiations. But just because you cannot reach an agreement does not mean you must let your property go for an unjust price.

When agreements cannot be made between landowners and the government, you can proceed to a special hearing where three court-appointed commissioners will review the details of the situation and determine fair compensation for the property.

Either party can object to the commissioners’ findings if it does not agree with the result. If there is an objection, the appeal of the “commissioners’ award” is handled just like a normal civil court case.

If negotiations for your property are unsuccessful, a competent eminent domain lawyer can represent you at the commissioner hearing stage and throughout the court process, all the way through a jury trial, if need be.

In some states, entities that wish to condemn land may enter to survey the property without the owner’s permission. Fortunately, Texas law provides landowners with more protections.

If anyone wishes to survey your property for the purposes of a potential condemnation action, that party must request permission. You can deny entry into your property, but this won’t necessarily stop the condemnation process. The entity can request the court to grant it permission to survey, and the courts most often grant such requests. Should you have doubts, it is best to discuss your situation with an eminent domain lawyer right away. A written agreement to allow an entity to survey can also make sure that the landowner is protected as well, due to liability and/or damages resulting from such activity.

Yes. The party exercising eminent domain will undoubtedly hire an appraiser to determine the value of your property. However, if you do not agree with that party’s valuation of your land and wish to negotiate with the party, it is proper and helpful to perform your own appraisal. 

Condemnation attorneys work with licensed appraisers all the time and can hire an appraiser on your behalf. Hiring your own appraiser too early in the process before a fair understanding of the actual impact of the taking can be a negative, so do not rush into that decision too soon.

Typically, district courts and county courts have concurrent jurisdiction over eminent domain cases in Texas, meaning they both have the power to hear these cases.

Every case regarding eminent domain and condemnation is different, and the difficulty of winning is based on several factors, including your definition of winning. Still, it is not impossible to “win” if you have the right team in place to help you through the process.

Hiring an experienced condemnation lawyer can make a big difference in your case. Such a lawyer can give you peace of mind throughout the process and fight vigorously to protect your rights as a Texas landowner. 

Critical Rights
of Property Owners

As a property owner, you have 10 critical rights

  1. You have the right to fair compensation for land that is taken for public use
  2. Land can only be taken for public projects
  3. Only an entity with the power of eminent domain may take your land
  4.  You must be properly notified about the condemnation
  5. You must be provided with a written appraisal from a certified appraiser
  6. A bona fide purchase offer must be made before a condemnation petition is filed
  7. You may enlist your own appraiser to assess the value of the land
  8. You may enlist a lawyer to represent you
  9. You are entitled to a special commissioners’ hearing
  10. You are entitled to trial by judge or jury if you are unhappy with the award.

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As a rancher and landowner himself, Dan Gattis understands firsthand the priorities and problems of private-property owners and shares the deep ties, emotions, and values of families that have lived and worked the land — many for generations.