Should I be doing anything before my property is condemned?
Is the word out? Is your property likely to be affected by a highway or other government taking? The time to act is now, not after the process is rolling.
Once the taking actually occurs and papers are filed, it may be too late to make critical decisions that could have an impact on your ultimate compensation. Documents establishing the legal status of ownership and any leasehold interests, for example, should be reviewed and sometimes modified up front. Under your attorney's guidance, input from an appraiser or other consultants can often be obtained quite inexpensively. Your response even to preliminary overtures from government representatives can affect the final outcome.
The impact of a road project often involves more than initially meets the eye. Beyond the value of the square footage taken, often overlooked are such things as environmental problems and a serious reduction in value of the property that remains.
In general, it is wise for an owner to seek the advice of an attorney when considering precondemnation actions, since the actions a property owner takes before the property is condemned may help or hurt the case.
The property owner should avoid taking positions, especially written positions, which may be used against him or her in the condemnation proceeding. If the property owner contests the tax assessment, for example, stating that the property is worth less than the county's or city's estimate, that appeal may be used against the property owner if, in the condemnation case, the property owner asserts a higher value.
The property owner should avoid contracts of sale or sale offers that might attach a value to the property before a condemnation proceeding. The property owner should avoid appraising the property before consulting with a lawyer.
Be careful, also, if you attend a public hearing about an upcoming project. These hearings are a good source of information for property owners. They can provide helpful information about the scope and time of public projects.
Remember, however, that any statement you make may be used later if you go to trial. Recently in the Norfolk Circuit Court trial of Commonwealth Transportation Commissioner of Virginia v. DAWA Corp., at law number CL99-1293, the Virginia Department of Transportation (VDOT) attempted to use a property owner's statement at a public hearing against the property owner at trial. The property owner gave a brief written statement at a public hearing and commented favorably on some aspects of the proposed project. At the trial, VDOT attempted to use those statements against the property owner.
Leases and other agreements signed by the property owner prior to condemnation may reduce the portion of the final award to which the property owner will be ultimately entitled. The property owner's attorney should be consulted on condemnation clauses contained within these documents. Further, the property owner should never produce leases, contracts, offers, and bids to the condemning authority without seeking the advice of an attorney.
The property owner should maintain the appearance and condition of the property. Visual impressions, even to sophisticated professionals, are important, and the condemning authority's appraisers will be inspecting the property long before it is condemned. The property owner should always keep the property looking as good as possible and never defer maintenance. Landscape and curb appeal are important. Improvements made to the property will affect its fair market value, upon which just compensation is based.
Favorable land use permits often enhance the value of the property. Where it is practical and prudent, the securing of a rezoning, plat approval, or building permit may result in a higher valuation of the property. The property owner should not interrupt development plans solely because of a pending condemnation. The decision of whether to apply for land use permits must always be weighed against the effect that a potential denial will have on the case. It is thus wise to seek the advice of an attorney before proceeding with a land use application.
Precondemnation Planning
