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Guide to Eminent Domain for Virginia Property Owners

The Virginian Pilot's Real Estate Weekly
By Joseph T. Waldo

Property ownership is a cherished constitutional right that separates citizens of the United States from most people around the world. In this nation we take for granted the fundamental right to own property.

There are millions of property owners in America and each property owner has a stake in our democracy. Property ownership is a unique right to hold land free from control of the government. Perhaps as citizens, it is the last sanctuary where we enjoy individual freedom free of government control.

The American Revolution was fought over individual freedoms. When the revolutionaries fought the tyranny of the English Crown, one of the colonists' many objections to English rule was the power of the Crown to seize property without compensation.

As a result of the Crown's abuse of power in seizing property, the framers of the Constitution added the takings clause to the Fifth Amendment to the Constitution (Bill of Rights) that no property shall be taken without just compensation and due process of law. The Virginia Constitution also recognizes this same right that property shall not be taken from private citizens without just compensation and due process.

Many property owners in the United States are introduced each year to the term eminent domain. It is the right of the government, the sovereign, to take property for the public good. Most often a taking involves a partial take where the widening or rerouting of a street or highway results in the government's need to take a portion of a property owner's land.

A more drastic taking is a condemnation whereby the government takes the entire parcel of property from a landowner. Condemnation quite often involves the taking of a person's home or even his business.

Normally, the sale of real estate is voluntary; part of the trauma associated with condemnation is the involuntary nature of the taking of property. Most property owners who lose their property as a result of condemnation do not want to sell their property to the government and would not do so if they had a choice.

In Virginia, what are property owners' rights when their property is taken for condemnation?

First and foremost, a property owner is entitled to "just compensation" for property taken by the government as a result of eminent domain.

Therein lies the issue. What is just compensation? Generally, a property owner who loses land to the government by eminent domain is entitled to the fair market value of the property taken and sometimes to special damages to any remaining property not taken if the value of the remaining property not taken has been diminished in value or harmed by the government's condemnation.

These damages to the remainder are the "severance damages." Fair market value, however, is only a tool in determining how to make a property owner whole as a result of condemnation. The ultimate test according to the Virginia and U.S. constitutions and court decisions is full or just compensation to the property owner.

A property owner has the burden in Virginia to prove in a court hearing to a panel of commissioners the value of his or her property. This is a legal hearing conducted much like a jury trial except that the commissioners who sit in judgment must be land owners in the community.

In addition, many of the normal rules and procedures that apply in a jury trial do not apply in a condemnation proceeding. Because Virginia condemnation laws and court holdings are peculiar and often times skewed against the property owner, a person whose land is being taken by eminent domain should prepare carefully for a trial and seek professional expertise.

Attorneys and professionals help a property owner establish the value of his property and build a case to prove the value.

In addition to damages for the actual condemnation, sometimes property owners are entitled to relocation expenses to help them move from their home or business as a result of a state or local government's condemnation proceedings.

Most property owners never dream that their property can be taken by condemnation and, under quick take proceedings, condemnation can actually occur before the property owner is even aware of the proceeding.

In those rare instances, the condemning authority condemns and transfers title to the property owner for the land already taken.

A recent movie titled, "It Can Happen to You" could also be used to describe the chance of condemnation for any property owner. It can happen and in fact does happen to thousands of property owners each year.

Property owners do not need to study up on condemnation because in reality the chances are slim that their property will ever be taken. However, in the event that it does happen, they need to quickly seek professional expertise and obtain all of the information that is relevant about their property.

With the help of an attorney specializing in condemnation, the property owners must establish the facts to prove the fair value of their property so that they are in a position to receive "just compensation" and not necessarily what the condemning authority says the market value happens to be.