FAQs

Texas Eminent Domain and Condemnation: Frequently Asked Questions

It is natural to be confused when you get a notice in the mail that the government is planning to seize your property.

Our Texas eminent domain lawyers are here to help. At Barron, Adler, Clough & Oddo, PLLC, we combine more than a century of experience advising individuals, families and businesses in eminent domain actions and related matters. We have dedicated our careers to helping clients protect their rights and maximize their compensation in these cases.

Eminent domain is a legal concept that gives the government the right to take private property when needed for public use. Federal, state, and local government entities use this power for a wide range of purposes, from building streets and roads to installing power lines.

When the government takes private property, it is required to fairly compensate the owner. It is also required to go through a formal legal process, known as condemnation, to take the property and determine the appropriate compensation if it cannot reach an agreement with the owner.

The government does not have to show that the property is in poor or unsafe condition in order to start condemnation proceedings. Rather, it merely has to establish that it needs the land for a public purpose.

Here are answers to some of the most common questions about eminent domain in Texas. Every situation is different, and a Texas eminent domain lawyer at Barron, Adler, Clough & Oddo, PLLC can help you evaluate your case, understand your rights, and weigh your options.

What Is Eminent Domain?

Eminent domain is a legal term that refers to the government’s power to take private property for public use. This power is enshrined in the U.S. Constitution and Texas law.

The eminent domain power in the Constitution comes from the Fifth Amendment, which generally protects individuals from government abuse of power. The “Takings Clause” acknowledges the government’s right to seize private property, as well as the right of property owners to be adequately compensated for it. Texas law also recognizes the right of state and local government entities to condemn property for a public purpose and in exchange for just compensation.

In Texas, eminent domain authority has also been delegated to counties, municipalities, and other political subdivisions. The power has been granted to private companies for some public use projects, like utilities and the construction of airports.

Condemnation is the process through which the government takes the property. The government does not have to show that the property is in poor or unsafe condition in order to start condemnation proceedings.

The government’s power to seize private property has been interpreted broadly by courts across the country, but it is not absolute. Government entities can only take private property when it is for a legitimate public use. The government also must pay just compensation, based on the property’s fair market value, to the landowner.

State law in Texas gives landowners additional protections under the Texas Landowner’s Bill of Rights. That includes requiring the government to give property owners adequate notice of condemnation proceedings, negotiate in good faith, and pay a fair price for the property that reflects its actual value.

What Is “Just Compensation?”

The government is required to provide “just compensation” to a landowner when it takes private property. However, government entities often undervalue property during the process. A Texas eminent domain lawyer at Barron, Adler, Clough & Oddo, PLLC can help ensure you are fully compensated for your property.

Compensation is based largely on the property’s fair market value. That, generally, means the price that it could fetch on the open market if the owner were not being forced to sell. The value is calculated at the point of the government’s taking. This timing can be crucial because of the swings in property values that can occur over time.

The value also is based on the “highest and best” use of the property. That may not necessarily be based on how the owner is using the property. Take, for example, farmland that is surrounded by housing developments and commercial businesses. If a government entity is able to use eminent domain to take the property, the fair value may be based on possible residential or commercial uses rather than agricultural use.

An appraiser will consider all uses for which the property is “reasonably adaptable” and for which it is or “is in all reasonable probability will become within the foreseeable future.” That does not include uses that are purely speculative.

If the government decides to take your property via eminent domain, it will make an initial offer to buy the property without going through the legal condemnation process. If it is not able to reach an agreement with you, it will initiate condemnation proceedings.

How Does the Condemnation Process Work?

Condemnation is the process through which a government entity seeks to take private property from its owners. When the government is unable to reach an agreement with a landowner to buy the property, it files a lawsuit in court to force the transfer and determine the amount of compensation that the owner must be paid.

A panel of three special commissioners hears condemnation cases.

The commissioners are appointed by a local court and authorized to determine the amount of compensation that the government must pay for taking private land. They are independent landowners who live in the county in which the property that the government is seeking to obtain is located. They are also neutral. The commissioners should have no personal interest in how the matter is resolved.

The commissioners hold an administrative hearing in which the government and the property owner each have a chance to present evidence and make arguments. This is a key opportunity to have your voice heard. An experienced Texas condemnation lawyer can argue your case and present evidence to establish the full value of the property.

The commissioners generally consider the market value of the condemned property when determining compensation. They also take into account any reduction in the remaining property’s value caused by the condemnation and the government’s plans for the property.

Many cases are resolved through the administrative hearing and the commissioners’ determination, if not through a negotiated deal earlier in the process. The government and the landowner have the right, however, to appeal the commissioners’ determination if either party does not agree with it. An appeal is treated like a civil action in a local court.

Do I Have to Accept the Government’s Offer?

No. Landowners are not required to accept the government’s offer to buy the property.

In fact, most landowners should reject at least the first offer that the government makes. It may be far less than what your property is actually worth and may not include the additional damages to the remaining property.

The government entity seeking to take the property must make a bona fide offer to buy the property at the outset. Before making a final offer, the entity must obtain a written appraisal from a certified appraiser of the value of the property being acquired. The appraisal must also evaluate the damages, if any, to any of the property owner’s remaining property.

The problem for landowners is that the government wants to pay as little as possible for their property. Government entities are under pressure to keep project costs low, and they look to do that in part by reducing the cost of acquiring the necessary land. They work routinely with the same appraisers, a relationship that gives appraisers incentives to keep them happy.

As a result, government entities often make lowball offers to try to pay pennies on the dollar for the property. They also use their inherent authority and the threat of legal action to pressure landowners to give up their property with little pushback.

An experienced eminent domain lawyer can help you evaluate the offer and take action to maximize your compensation.

What if I Do Not Want to Sell My Property?

Although the government’s eminent domain power is broad and courts often defer to public entities seeking to take private land, there are some limited options for landowners who want to fight eminent domain actions.

You can argue that the entity seeking to condemn the land does not have eminent domain authority or that the taking is not necessary for a legitimate public use. Transportation projects, like roads and highways, and utility projects, like oil and phone lines, are common public uses. Government entities also often invoke eminent domain for parks, schools and libraries, among other public projects.

If the government’s taking of property confers a benefit on a particular private party, such as a business, through the use of the property, the use is not considered public. Also, the government cannot justify taking private property for transfer to another private party if the primary purpose is economic development or enhancement of tax revenues.

An owner can also argue that the government’s decision about what property to take for a project was arbitrary and capricious. Or simply that the government did not go through the required legal process for taking the property.

In some situations, an owner may also be able to argue that an inverse condemnation has occurred. In these actions, private property owners argue that the government has effectively taken their property without going through the formal condemnation process or paying adequate compensation to the owners.

In most cases, however, proving these defenses may simply slow down the process and give you leverage in negotiating compensation rather than stop the government from taking the land altogether.

Do I Need an Eminent Domain Lawyer?

You are not legally required to hire an attorney if the government notifies you that it plans to take your property through eminent domain. However, there are several reasons why you should have an experienced Texas eminent domain lawyer by your side.

For most people, their real estate or business is their single biggest asset. That is why it is crucial to get full value for it when the government seeks to take it from you. Hiring a knowledgeable eminent domain attorney who understands the law, knows how to negotiate with the government and is prepared to go to trial if needed is an important first step.

Eminent domain is a unique and complicated area of the law. It is vital to have someone who understands the condemnation process and all of the requirements that come with it. A Texas eminent domain lawyer will be able to explain your rights, evaluate the government’s offers, and consider your options for maximizing your compensation.

The government uses a small army of lawyers and other professionals to pursue eminent domain cases. Their goal is to pay you as little as possible for your property. They are well-versed in eminent domain law and have significant experience going before commissioner panels and courts to get what they want. Fortunately, you do not need to go through it alone. A seasoned attorney will guide you through the process and ensure that the government meets its obligations under the law.

At Barron, Adler, Clough & Oddo, PLLC, we are guided by the principle that property rights are sacred in Texas. Our Texas eminent domain lawyers have successfully handled eminent domain cases for a wide range of landowners, including individuals, families, and businesses. We have advised clients on issues impacting a full spectrum of property types.

We have represented clients on property matters related to major road development projects across Texas. Our attorneys also have assisted individuals and businesses in special use takings stemming from municipal airports such as the Austin South Terminal, the Texas Rangers stadium, the Sun Bowl stadium, the LBJ Hospital, and a dredge disposal site operated by the Port of Houston Authority.

If you are involved in an eminent domain, condemnation, or inverse condemnation case, let the Texas eminent domain lawyers at Barron, Adler, Clough & Oddo, PLLC put their experience to work for you. Contact us today to discuss your case and how we can help.