When the government or another condemning authority needs to acquire private property for a public project, the process typically involves several steps. While every case is unique, most condemnations involve the condemnor identifying the property it needs, contacting the owner, assessing the property, making an offer, negotiating with the owner, and, if an agreement cannot be reached, potentially initiating a formal condemnation proceeding.
Understanding what happens at each stage can help you protect those rights and make informed decisions about your property.
The Condemning Authority Identifies Property Needed for a Public Project
The eminent domain process in North Carolina may begin before a property owner receives an offer or even knows that their property is being considered for acquisition.
A landowner may first learn about a proposed taking when a potential condemnor enters the property to conduct preliminary surveys, perform engineering work, or gather other information needed to plan a public project.
North Carolina law permits certain preliminary entries onto property for surveying and related purposes. Under N.C. Gen. Stat. § 136-120, a condemnor that enters property for these purposes must compensate the owner for damages caused by the entry.
How Are Properties Selected?
Properties are generally identified based on a project's location and design requirements.
Common examples of projects that require the use of eminent domain include:
- Highway and transportation improvements
- Road widenings
- New roads and interchanges
- Utility projects
- Drainage and stormwater improvements
- Parks and recreational facilities
- Schools
- Public buildings
- Other infrastructure projects
The proposed route, engineering requirements, right-of-way needs, utility locations, drainage requirements, and other project considerations can determine which properties are affected.
Full Takings vs. Partial Takings
A full, or complete, taking occurs when the condemning authority takes the entire property, and you no longer own any portion of the land. This typically occurs when the land is required for a large-scale project, such as a highway interchange or government facility.
Partial takings differ from full takings in that the government acquires only part of the property. Partial acquisitions are common in road-widening projects, where additional right-of-way or easements may be needed along the front or side of a parcel.
A partial taking can result in damages exceeding the value of the land directly acquired. For example, losing frontage, parking, access, visibility, or development potential may reduce the value of the remaining property, and a property owner may be compensated for damages to the remainder.
Property Owner Initial Contact/Notice
After a project has advanced far enough for the condemning authority to identify affected properties, the property owner will generally begin receiving communications about the proposed acquisition.
A right-of-way agent for the condemning authority may contact the owner to discuss the project and the property interest the government wants to acquire.
Depending on the project and condemning authority, the owner may receive:
- Informational letters explaining the public project and why the property is affected
- Project maps and right-of-way plans showing the portion of property proposed for acquisition
- Notices of proposed acquisition identifying the agency or entity seeking the property
- Appraisal information and estimates of the value of the property interest
- Purchase offers
- Requests for meetings with the property owner
- Contact information for a right-of-way agent
What Should You Do After Receiving Notice?
After receiving a notice from a condemning authority, here are important steps you should take to protect your best interests:
- Keep every letter, map, appraisal, offer, and other document you receive.
- Review exactly what property interest is being acquired.
- Determine whether the taking is temporary, permanent, partial, or complete.
- Document the condition and use of your property.
- Consider whether the project will affect access, parking, visibility, business operations, development potential, or the value of the remaining property.
- Consider having the proposed acquisition and offer reviewed before signing anything.
The Condemnor Appraises the Property
Before making an offer, the condemning authority generally determines the estimated value of the property it's seeking. However, this is not necessarily the final word on the property's value or the compensation you may be entitled to receive.
How Is Fair Market Value Determined?
To determine the value of your property, an appraisal may consider:
- Comparable property sales
- Location
- Size
- Physical characteristics
- Zoning
- Existing improvements
- Access
- Current use
- Potential uses
- Income-producing potential
- Development potential
- Highest and best use
Depending on the property, one of the following approaches may be used to determine just compensation:
- Market or comparable sales approach
- Cost approach
- Income capitalization approach
Factors That Can Affect Your Property's Value
The proposed taking may affect more than the acreage shown on the government's map.
Potential valuation issues can include:
- Loss of frontage
- Changes in access
- Loss of parking
- Changes to the property's configuration
- Loss of development potential
- Damage to buildings or improvements
- Permanent easements
- Temporary construction easements
- Changes to drainage
- Changes in Highest and Best Use of the property
These issues and others should be evaluated as part of the overall condemnation claim.
Real Life Case Results
When the government undervalues your property, experience matters. Explore our case results and client reviews to see how we’ve consistently achieved exceptional outcomes in eminent domain cases.
$ 7,872,000
These commercial takings of family property involved two adjacent tracts that included a retail strip center, commercial, and restaurant development. The NC Department of Transportation took a new right-of-way, temporary construction easements (TCE), slope easements (SE), permanent utility easements (PUE), permanent drainage/utility easements (DUE), and a permanent drainage easement (PDE). Together, the easements extended across the entire property’s frontage.
Due to a dispute over the breadth of the easement language utilized by the Department of Transportation, the property owners demanded a Section 108 hearing to determine the scope of the DOT’s taking within the permanent easement areas. Similar to other Section 108 orders obtained by property owners represented by the Henson Fuerst team, the judge ordered that the PUE, DUE, and PDE easement rights taken by DOT are so permanent, broad, and extensive that DOT has the right to use the easement areas to the fullest extent, including to the exclusion of the property owners.
Due to the 108 ruling and after employing various procedural tactics prior to negotiations, including requests for admissions and written interrogatories, Henson Fuerst Attorneys were able to resolve the case just days before trial for our expert appraiser’s full appraisal amounts in both cases in the amount of $7,872,000. This total represents an increase of 896% over the combined initial offers of $791,075. The cases were prosecuted by Attorneys from the NC Attorney General’s Office.
$ 20,560,000
In a landmark series of trials, Henson Fuerst Attorneys successfully represented a shopping center owner in a complex series of eminent domain cases, securing more than $20,560,000 in combined jury verdicts for six contiguous parcels affected by a North Carolina Department of Transportation roadway project.
The six cases, tried over three weeks, involved the taking of commercial shopping center parcels through right-of-way acquisition, permanent utility easements, and temporary construction easements. Each case resulted in verdicts that dramatically exceeded the state's deposits:
- $13,920,000 (from $48,900 DOT deposit – 28,366% increase)
- $1,677,419 (from $82,350 DOT deposit – 1,936% increase)
- $2,054,000 (from $57,250 DOT deposit – 3,487% increase)
- $983,000 (from $60,000 DOT deposit – 1,538% increase)
- $1,352,000 (from $25,300 DOT deposit – 5,243% increase)
- $574,000 (from $10,350 DOT deposit – 5,448% increase)
The combined verdicts represent a 7,135% increase over initial offers, with the lead case resulting in the largest known eminent domain verdict and percentage increase over the initial offer in North Carolina history.
Prior to trial, Henson Fuerst attorneys secured important NCGS 136-108 rulings addressing the scope of utility easements and their impact on property access. The court determined that the overly broad easements effectively eliminated legal access to the parcels and “this court, the jury and all parties shall presume that the DOT will fully and forever exercise all interests and rights it has taken from defendant by completely using, enjoying and occupying the easements on, above and below the ground to the exclusion of defendants”.
The firm's thorough preparation included comprehensive Rule 30(b)(6) expert witness deposition cross examination and strategic case development that ultimately led to the exclusion of opposing expert testimony across all six cases.
Henson Fuerst retained qualified appraisal experts for each case who provided detailed testimony regarding the financial impact of the property takings. The jury verdicts matched or exceeded the expert valuations in every case, with one jury awarding an additional $100,000 beyond the amount requested.
The cases were initially appealed by the DOT to the North Carolina Court of Appeals, but Henson Fuerst Attorneys were successful in having all six appeals dismissed.
In addition to the judgment amounts, the DOT also paid $4.3M in post filing interest, which brought the total recovery for the cases to a total of more than $24,580,000.
Henson Fuerst was associated by local counsel in these matters given our extensive experience in litigating overly broad permanent utility easement language utilized by the DOT in recent years. The cases were prosecuted by multiple attorneys from the NC Attorney General’s office.
The successful outcomes of these cases underscore Henson Fuerst's commitment to protecting property owners' rights and ensuring appropriate compensation in eminent domain cases.
$ 4,600,000
Henson Fuerst partners Chris Beacham and David Henson were associated into this case by referral counsel as a result of their previous successes in litigating overly broad permanent utility easement language being used by the Department of Transportation across the State of North Carolina. Thus far, Henson Fuerst Attorneys have been successful in litigating Section 108 Hearings in more than a dozen cases involving permanent utility easements with all-encompassing language that adversely impacts property owners. This case involved a mixed-use commercial parcel with multiple businesses being operated out of separate buildings. The primary frontage of the property was impacted significantly by a mix of right of way, control of access, permanent utility easement, and a permanent drainage/utility easement taking. Secondary road frontage for the property was partially impacted by a temporary drainage easement.
The initial offer and deposit from the State was $305,650. Both sides retained expert appraisal witnesses to provide opinions of damage valuations. The case resolved several months after Henson Fuerst Attorneys were associated in the case and prevailed in a Section 108 hearing. The case resolved for $4,600,000, or 1,405% above the initial offer. The case was defended by counsel from the NC Attorney General’s Office.
The Condemnor Makes an Offer
Once the condemning authority has determined its estimated value, it will generally present the property owner with an offer.
What the Initial Offer Typically Includes
Depending on the condemning authority and the stage of the acquisition, an offer package may include:
- A written purchase offer
- The appraisal or valuation information
- A description of the property interest being acquired
- Project maps
- Right-of-way plans
- Easement documents
- Relocation information, when applicable
- Other acquisition documents
The offer represents the condemnor's assessment of the compensation it believes should be paid.
What If You Disagree With the Appraisal Offer?
Getting a second opinion on an appraisal offer can be beneficial, especially when the initial appraisal was prepared by an appraiser that works exclusively for the state. In some cases, this can lead to a biased and unfair compensation valuation.
An independent appraisal can provide a separate analysis of the property's fair market value, highest and best use, the value of the property interest being taken, and any damages to the remaining property.
Our team offers a free appraisal review for property owners who want to better understand a government appraisal and whether it accounts for all applicable losses.
Do You Have to Accept the First Offer?
No, you do not have to accept the first offer. Negotiations may continue, and an owner can seek additional information or an independent appraisal to determine whether the proposed compensation reflects the full impact of the taking.
Negotiation Begins
If the initial offer does not adequately reflect the value of the property and the effects of the taking, negotiations may begin or continue.
The negotiation process may involve:
- Counteroffers
- Additional appraisal analysis
- Property inspections
- Review of project plans
- Discussions about access
- Easement modifications
- Temporary construction impacts
- Damages to the remaining property
How Long Can Negotiations Last?
There is no universal negotiation period. Some acquisitions are resolved relatively quickly. Others can involve weeks or months of negotiations, particularly when the acquisition involves high-value property, the taking is complicated, or the parties disagree substantially about valuation.
Pre-Condemnation Settlement
In some cases, the property owner and condemning authority may reach a settlement before formal condemnation proceedings begin. If an agreement is reached, the acquisition can be completed without the need for a condemnation lawsuit.
If the parties cannot agree on the amount of compensation or other terms of the acquisition, the condemning authority may proceed with a formal condemnation.
Condemnation Proceedings Begin
If negotiations do not result in an agreement, the condemning authority may initiate formal condemnation proceedings. The procedure depends heavily on who is condemning the property and the statutory authority under which the taking occurs.
In a condemnation proceeding, the condemning authority may file the required documents with the court and, in some cases, deposit its initial offer or estimated compensation with the court. For NCDOT quick-take condemnations, for example, the filing and required deposit can result in title to the property interest being acquired and the right to immediate possession vesting in NCDOT. The amount deposited represents the condemnor's estimate of compensation, not necessarily the final amount of just compensation.
Even after a condemnation proceeding begins, the property owner's claim for additional compensation can continue. The owner and their legal team may continue gathering evidence, obtaining appraisals and expert opinions, documenting damages, and negotiating with the condemning authority. If the parties cannot reach an agreement, the dispute over just compensation may proceed to trial.
However, the specific procedure varies depending on the condemning authority. NCDOT and NCDOA condemnations may follow different procedures from local public and private condemnations. Understanding which statutory process applies is an important part of understanding a property owner's rights.
Can Negotiations Continue After Filing?
Yes. Filing a condemnation action does not necessarily end settlement discussions.
The parties may continue negotiating after litigation begins. Additional appraisal work, discovery, expert analysis, and a clearer understanding of the property's damages can help the parties evaluate the compensation being offered and potentially reach an agreement.
Mediation or Trial
Even after condemnation proceedings begin, there will be an opportunity to sit down with the condemning authority and negotiate a settlement. Mediation or settlement discussions can provide an opportunity to work toward an agreement between the condemning authority's valuation and the property owner's valuation.
If the parties cannot reach an agreement, the case may continue through litigation. Our eminent domain lawyers at Henson Fuerst can continue gathering evidence, working with qualified experts, and advocating for the compensation the property owner believes is supported by the evidence, including taking the case to trial when necessary.
Jury Trial, When Applicable
Depending on the type of condemnation and the issues being litigated, a case may proceed to a jury trial. The jury or court may determine the compensation owed under the applicable procedure.
Final Judgment
If the case proceeds through trial, the court enters a final judgment addressing the issues determined in the proceeding.
How Long Does the North Carolina Eminent Domain Process Take?
There is no single timeline that applies to every eminent domain case in North Carolina.
A straightforward acquisition may be resolved through negotiation, while a complicated condemnation involving a major infrastructure project, commercial property, disputed valuation, or litigation can take substantially longer.
Factors That Can Affect the Timeline
The timeline may depend on:
- The type of condemning authority
- The size and complexity of the project
- Whether the taking is partial or complete
- The type and value of the property
- The availability of comparable sales
- Whether independent appraisal work is necessary
- Disputes over highest and best use
- Damages to the remaining property
- Access issues
- Easement issues
- The need for expert witnesses
- Discovery
- Mediation
- Settlement negotiations
- Trial and appeals
Large transportation and infrastructure projects may involve acquisition efforts over an extended period.
Once a condemnation lawsuit has been filed, however, property owners should pay close attention to the deadlines applicable to their particular proceeding.
Your Rights During the Eminent Domain Process
The government's power of eminent domain is significant, but it is not unlimited. A property owner's specific rights depends on the condemning authority, the type of taking, and the applicable statutes. However, the general rights of a landowner include:
The Right to Challenge a Taking
A condemning authority must have legal authority to take private property for a public use. Property owners may have the right to challenge whether the taking is authorized, whether the amount of property being acquired is necessary, whether an easement is broader than reasonably required, or whether the proper procedures have been followed.
While stopping a condemnation or blocking an easement may be difficult, owners may be able to challenge the scope of the taking when, for example, more property is being acquired than the project reasonably requires.
In some cases, owners may also have an opportunity to request changes to a proposed project or easement, particularly during earlier stages of the process.
The Right to Just Compensation
When private property is lawfully taken through eminent domain, the owner is entitled to just compensation under North Carolina law. Compensation is not necessarily limited to the value of the land or property interest acquired.
Depending on the circumstances, compensation may also account for legally compensable damages to the remaining property and other effects of the taking. These may include reduced access, loss of frontage or parking, changes to the property's configuration, development restrictions, or other impacts on the property's value.
Property owners also have the right to review the condemning authority's valuation and determine whether it accurately reflects the property's fair market value, highest and best use, the property interest being acquired, and any damages to the remainder.
The Right to Due Process and an Opportunity to Respond
Property owners are entitled to the procedures required by the applicable condemnation law, including the opportunity to respond to or contest the taking and compensation when permitted by law.
The specific process varies depending on the condemning authority. Property owners may negotiate with the condemning authority, obtain an independent appraisal, and present evidence supporting a different valuation. They may also seek assistance from attorneys, appraisers, engineers, land planners, and other professionals whose expertise may be relevant to the property and proposed taking.
Understanding the applicable procedure can help property owners determine what options are available and how to protect their property interests throughout the condemnation process.
Common Mistakes Property Owners Should Avoid
Frequently Asked Questions
If a condemning authority has lawful eminent domain authority and follows the applicable statutory procedure, a property owner generally cannot refuse the taking altogether.
However, property owners may have legal grounds to challenge the authority, scope, procedure, or compensation involved in a particular condemnation.
Fair market value is determined by the property's characteristics and the applicable appraisal methodology. Comparable sales, highest and best use, income-producing potential, improvements, and other factors may be relevant.
Yes. Negotiation is an important part of many eminent domain acquisitions. Depending on the condemning authority, negotiations may occur before and after a condemnation action is filed.
A partial taking can involve compensation for the property acquired as well as potential damages to the property that remains. Access, parking, visibility, configuration, development potential, and other impacts should be evaluated.
There is no standard timeline. Some cases resolve during negotiations, while complex cases involving major projects, commercial properties, disputed valuation, or litigation may take considerably longer.
You are not legally required to hire an attorney in every condemnation matter. However, eminent domain cases can involve complex valuation rules, procedural requirements, expert evidence, and substantial financial consequences.
If the property is owned by a corporation (or as an LLC), under applicable North Carolina law, the owners of a corporation may not represent the corporation in a lawsuit, and attorney representation is required.
An attorney experienced in North Carolina condemnation law can help evaluate the proposed taking and determine whether the government's offer accounts for the full extent of your potential compensation.
It depends on the degree and extent of the taking.
In an NC quick-take proceedings, title and the right to immediate possession vest after the complaint, declaration of taking, memorandum of action, and required deposit are filed.
You can seek to negotiate for additional compensation. If the parties cannot reach an agreement, the dispute may proceed through the applicable condemnation process and ultimately to a determination of just compensation by a jury.
North Carolina law gives eminent domain authority to certain governmental entities and other authorized condemnors, such as public utility companies. The specific authority depends on the entity and the purpose of the taking.
Chapter 40A identifies categories of public and private condemnors and establishes procedures for certain condemnation proceedings. Chapter 136, Article 9 applies to all takings by the NC Department of Transportation and some municipalities.
How an Eminent Domain Attorney Can Help
An experienced eminent domain attorney in North Carolina can evaluate the government's proposed acquisition and determine whether its offer adequately reflects the property's value and the consequences of the taking. More specifically, our eminent domain lawyers can help you throughout the entire process by:
Reviewing Offers and Appraisals
An attorney can review:
- The government's offer
- Appraisal materials
- Project maps
- Right-of-way plans
- Easements
- Proposed acquisition documents
- Potential damages to the remainder
Negotiating for Greater Compensation
Your attorney can negotiate with the condemning authority and its representatives based on appraisal evidence, property-specific damages, and other supporting information.
Representing You in Court
If negotiations fail, an attorney can represent you in the applicable condemnation proceeding and develop the evidence needed to pursue additional compensation.
Protecting Your Rights Throughout the Process
An attorney can help with:
- Reviewing government offers
- Coordinating independent appraisals
- Identifying valuation issues
- Working with expert witnesses
- Negotiating with condemning authorities
- Calculating the full effects of a partial taking
- Evaluating access and easement issues
- Identifying potential damages to the remainder
- Addressing business impacts when legally compensable
- Responding to condemnation litigation
- Preparing for trial when necessary
Henson Fuerst Has Helped North Carolina Property Owners for More Than 50 Years
Eminent domain cases involving high-value residential, commercial, agricultural, and development property can be complicated. The government's offer may address the land being acquired without fully reflecting the project's broader effects on the remaining property.
At Henson Fuerst, our North Carolina land condemnation attorneys have represented property owners throughout the state for more than 50 years. If a government agency or other condemning authority has contacted you about acquiring your property, you do not have to navigate the process alone.
Call Henson Fuerst at (866) 821-3146 or complete our free initial consultation form.