What is a Negotiation Diary?

February 3rd, 2017

What is a negotiation diary of a right of way agent in a North Carolina DOT land taking case? In an eminent domain or land condemnation case involving the State of North Carolina, there is an important player called the right of way agent, or ROW agent. That person is North Carolina DOT’s representative who handles the property taking, communicates with the land owner or their lawyer, obtains North Carolina DOT’s property appraisal, and attempts to negotiate the case prior to filing a lawsuit against you.

In short, the ROW agent is the person working to take your property for the least amount you will accept. The ROW agent’s focus is on limiting spending, not on making sure you are fully and fairly compensated. Under NCDOT policy, a right of way agent must keep what is called a negotiation diary, which documents every encounter that the agent has with the property owner. This includes any time the agent visits the property, the home, or business, or talks with the property owner by phone or in person. In addition, the agent documents any offers made to the owner, and counter offers by the land owner, and any and all statements made by the owner, even observations about the attitude of the owner, or any other details that the agent can put down on paper.

This negotiation diary is then made a part of the file, and if the property owner and the agent cannot agree to a settlement of the case, then the diary is sent to the attorney general’s office to use in the lawsuit against you. Since this diary is a contemporaneous log of all communications, there is a reasonable possibility that anything written in there can and will be used against you, the property owner, in court. Whether the contents of the diary are true or not, it may be used against you in front of the judge and the jury.

As a result, as a lawyer, it is my advice to never communicate with a right of way agent other than to tell them to call your lawyer. That way, any thoughts, information, values, or appraisals that you have of your own land can be presented in a way that’s fair and protected, rather than used against you to pay less than the fair value of your land. If you have additional questions, feel free to call us at 800-452-9633.

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