California Eminent Domain Attorney

CA Eminent Domain Attorneys Representing Business and Property Owners

At Century Law Group, LLP, our California attorneys are here to assist you with a full array of eminent domain issues. Visit the pages below for specific information:

  • Retaining a lawyer in your eminent domain case
  • Helpful terms to know
  • Codes that may apply in your situation

We also encourage you to read the frequently asked questions and answers here:

What is Eminent Domain?

Eminent domain (also known as condemnation) is the inherent power of local, state, or federal government agencies to take a citizen’s private property. The government can take the property without the owner’s consent so long as the property will be used for “public use” and the owner is paid “just compensation.”

Why can the Government take my property?

The government’s right to take personal property for public use so long as it pays just compensation is enumerated in the Fifth Amendment to the United States Constitution and article I section 19 of the California Constitution. People often refer to it as the takings clause.

Can I fight the Government?

Most government agencies have the power of eminent domain. In fact, over 380 municipalities in California have created redevelopment agencies with eminent domain power. However, on occasion there are instances where a successful challenge of a taking could be made when necessity or public use is not found. More likely, a successful challenge can be made to the government’s initial compensation offer for the taking. Century Law Group can assist you in your attempt to seek a higher compensation for your property interest.

Can I negotiate with the Government?

You can negotiate with the Government. Typically, after the government agency has given the initial offer, you can try to negotiate a higher amount directly with the government official. However, once a complaint has been filed and a lawsuit has commenced, the informal negotiation period has ended. An answer to the complaint must be filed within 30 days of the complaint being served. After the complaint has been answered, you or your attorney will participate in mandatory settlement conferences during the pre-trial stage of the lawsuit.

What if I rent the property instead of owning it?

Depending on the terms of your lease, if you are a tenant of property being condemned, the government still needs to pay you just compensation if the taking has interfered with your enjoyment of possessory rights in the property. A tenant can often receive the present value of his or her future right to possess and use the property if the lease does not contain a condemnation clause. Under certain circumstances, even if the lease does contain a condemnation clause, the tenant also has a right to compensation for removable fixtures and equipment, relocation costs, and loss of business goodwill.

What if only part of my property is taken?

The government will often just take a portion of someone’s property, in order to widen a road, for example. If the government does not take your entire property, it is still required to pay you just compensation, called severance damages. In this case, severance damages will usually include the value of the part of property taken, plus the damage to the remaining property. Depending on the circumstances, the damage to the remaining property can be quite high.

Can I receive compensation before the completion of a lawsuit?

Typically when a lawsuit is commenced, the government agency will deposit into the state treasury an amount of money it determines to be the probable compensation based off its expert appraisal report. After deposit, the government agency may request early possession of the property prior to a judgment. The property owner can request to withdraw this deposit prior to a judgment as well. This does not affect your ability to obtain a higher amount of compensation at a later date, either through settlement or judgment.

What happens if I ignore the complaint?

Once the government has filed and served you with a complaint, a lawsuit has commenced. Property owners sometimes think they can ignore the complaint, or continue negotiating with the government agency. However, once a complaint has been served, you have thirty days to respond to the complaint by filing an answer with the court. If you do not file this answer, you may have a default judgment entered against you. This means the government will pay you the amount stated in the complaint, which is often a lower amount than the property owner truly deserves. While it is sometimes possible to get this default judgment vacated, it cannot be guaranteed.

Applicable Eminent Domain Codes

Code of Civil Procedure §1240.010 — The constitutional limitation that the power of eminent domain may be exercised only for a public use.

Code of Civil Procedure §1245.010 — Government agency officials have the right to enter the property in order to make studies, surveys and other investigations.

Code of Civil Procedure §1260.010 — Eminent domain actions “shall be quickly heard and determined” and are given priority over other civil actions.

Code of Civil Procedure §1263.120 — Defines the date of valuation as the date of “commencement of the proceeding.”

Code of Civil Procedure §1263.210 — Provides that property owners will be paid for the value of fixtures and improvements.

Code of Civil Procedure §1263.320 — Defines fair market value as the highest price on the date of valuation.

Code of Civil Procedure §1263.510(b) — Defines goodwill as the “benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in probable retention of old or acquisition of new patronage.”

Code of Civil Procedure §1265.150 — The lessee (or tenant) is entitled to seek compensation for the loss of his or her lease when the government condemns the property.

Government Code §7267.1 — Government agency must conduct an appraisal on the property prior to making an offer or commencing negotiations.

Government Code §7267.2(a) — Government agency must provide the owner with a summary of the appraisal report prior to adopting a resolution of necessity.

Relocation Assistance Act (Government Code §7260-7277) — Government agency must compensate the property owner for actual moving and related expenses.

Glossary of Helpful Terms

Answer

Once a complaint has been filed, you must file an answer to the complaint. This answer will accept or deny each of the allegations alleged in the complaint. It should also contain a statement of the nature and extent of the interest you claim in the property as well as claims of loss of goodwill and precondemnation damages if applicable.

Blight

Elimination of blighted areas has long been held to be a valid public use. Blight has been found to include unsafe buildings, dilapidation, faulty utilities, subdivided lots of irregular shape and inadequate sized lots for development.

Complaint

The complaint is the first pleading filed with the court in a condemnation action. The complaint will state the government agency as the plaintiff in the action. Yourself, as well as other parties with an interest in the property are typically listed as the defendants in the action. The complaint will state the property being condemned and a statement of the government’s right to take the property, among other allegations.

Condemnation Clause

A condemnation clause is a clause in a lease between the landlord and tenant stating that if the property is condemned the tenant will not receive a portion of the compensation.

Date Of Valuation

The date of valuation is the date the complaint is filed if the case is brought to trial within one year. If the case is brought to trial after one year, the date of valuation will become the date trial begins.

Default Judgment

If an answer is not filed within 30 days after the complaint has been served, the government can obtain a default judgment against you. This default judgment precludes you from making a finding of additional compensation owed to you. Typically, the government will seek a default judgment amount based off its appraisal report, which can be substantially lower than the amount found through settlement or trial.

Discovery

Discovery is a pretrial phase of litigation. During discovery, both sides seek information from each other in an attempt to build and prove their case. In eminent domain actions, discovery typically includes both sides having the property appraised. Other discovery requests can include requests for documents and interviewing interested parties, known as taking depositions.

Fair Market Value

The fair market value of property is the highest price estimated that the property would bring if exposed for sale for a reasonable period of time. The highest price is determined by the “highest and best use” of the property. Real estate appraisers for both parties will each make a determination of the fair market value for the property at the date of valuation. Both appraisals will be presented to a jury to determine the final amount paid.

Appraisal amounts can differ drastically, which can lead to a big difference in the final amount paid. Century Law Group, LLP works with experienced, knowledgeable appraisers who will be able to give a fair appraisal of your property.

Improvements

Improvements, which the property owner is entitled to compensation for, is defined as “any machinery or equipment installed for use on property taken by eminent domain” which cannot be removed from the property without substantial economic loss or damage to the property. These improvements are oftentimes referred to as “fixtures and equipment.”

Judgment

If both sides do not reach a settlement agreement, the eminent domain action will be tried before a jury. At the conclusion of the trial, the jury will deliberate to come up with a value of the property based off evidence provided by both parties. The value the jury finds is called the judgment and is the final dollar amount the government is ordered to pay the property owner.

Just Compensation

The Fifth Amendment of the United States Constitution and Article I Section 19 of the California Constitution both provide that the government must pay “just compensation” in order to take private property. Generally, “just compensation” is sought for the value of the real property being taken, improvements to the property, such as fixtures and equipment, and business goodwill. Just compensation for these items is generally the “fair market value” of the item as of a particular date.

Loss Of Goodwill

If a business is on property which is condemned, whether it owns the property or leases, the business owner is entitled to compensation for loss of business goodwill as a result of moving business locations. The owner must show that a loss is caused by the property being condemned and that the loss cannot be reasonably prevented by relocating. Typically, a goodwill expert will evaluate the loss of goodwill caused by the condemnation. See CCP §1263.510(b) below for a definition of goodwill.

Public Use

Originally, public use was construed to mean land to be used by the public. This would often include uses such as public roads and highways, schools, libraries, and police stations. Elimination of “blighted” areas has also been a common public use. As of 2005, the United States Supreme Court has held that eminent domain can be used to take private property in order to give it to another private party. This controversial economic redevelopment theory is that new owners will put the land to more lucrative uses, thereby increasing tax revenues which would benefit the public.

Resolution Of Necessity

A Resolution of Necessity must be adopted by the government agency before the agency can commence an eminent domain proceeding in court. This formal decision states that the agency has concluded that the following conditions have been met: (i) the project is necessary and in the public’s interest, (ii) the project provides for the greatest public good and least private injury, (iii) the property is necessary for the project, and (iv) an offer has been made to the owner of the property. These findings are typically conclusive except for where gross abuse of discretion, bribery or fraud can be found.

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