Posted in Condemnation Cases on Wed October 26, 2011
If you or someone you know has recently received a notice or a declaration of taking by the government regarding a portion of your property, there are significant questions you need answered to protect your rights as the homeowner.
1.) Was a Complaint filed for the taking? A complaint is a lawsuit, and in condemnation cases, the plaintiff is usually the government (or entity taking the property) and the defendants are all the “potentially” affected parties of that taking. Typically the list of defendants would include the homeowners, the bank who has the mortgage, and the Trustee (if there is one). The date of the taking is the same as the date of the filing of the complaint, and the plaintiff must deposit the full amount of the funds which it deems “just compensation” to the defendants. These funds are held with the Clerk of Court in whichever county the lawsuit was filed.
2.) A Complaint has been filed, and I disagree with the “just compensation” amount for my property. How do I fight it? If you agree with the amount deposited with the Clerk of Court as just compensation for the portion of your property being taken, then you may move the court to disburse the funds directly to you, once you have determined that none of the other defendants have an interest in the funds. NOTE – You must contact and provide adequate notice to all defendants that you plan on having a hearing to withdraw the funds. You do not need an attorney to withdraw these funds, but if you are nervous about doing it, you can hire an attorney to make a limited appearance on your behalf.
If you disagree with the amount deposited, you probably need to contact an attorney. The plaintiff has most likely determined your “just compensation” dollar amount by hiring an appraiser, who used a method for determining value. This appraiser must determine what the “highest and best use” of the condemned property was as of the filing of the taking. Your attorney will most likely want to hire a different appraiser or someone who can testify as to why the plaintiff’s value of your property is unreasonable or too low. These costs will most likely need to be paid out-of-pocket by you, but in certain situations you may use the amount deposited with the Court to pay some of these expenses.
In condemnation cases, withdrawing the deposit (if you are permitted to do so) will not affect your right to later potentially collect more from the plaintiff, so long as you haven’t signed anything waiving this right. You need to consult an attorney soon after receiving the complaint to avoid jeopardizing your rights to “just compensation.”