Quick taking statutes have been adopted by many states and the federal government, and provide a condemning authority with the right to immediately take possession of property once a judgment is granted in its favor. Generally speaking, a quick take proceeding begins when the party that is seeking to take your property files a “declaration of taking.” The declaration explains that your property is being taken, or has been taken, for the use of the condemning authority.
Additionally, the condemning authority will provide the court with a deposit, which is an amount of money that the condemning authority feels is just compensation for the property being taken. If you believe that the amount of money that is being offered is insufficient or unfair, a hearing will take place.
According to the United States Constitution, the government is permitted to take and use property for a public purpose if they provide the landowner with “just compensation.” This is commonly referred to as eminent domain condemnation. Generally, federal and state governments have delegated this eminent domain power to local governments and municipalities.
These entities have the power of eminent domain condemnation for the purpose of strengthening the public infrastructure. What this means is that they have the power to take and use private property for public use. Such purposes generally include the creation of:
- Public utilities; and/or
- To ensure public safety.
However, one popular argument is that eminent domain has become a tool used by government agencies simply to transfer private property from one owner to another. Additionally, quick take proceedings generally favor the condemning authority. Because of this obvious bias, most quick take statutes are intended to protect the interests of property owners. The condemning authority must adhere to considerably strict guidelines, and if the authority’s declaration of taking is insufficient, they run the risk of losing the quick take proceeding.
What Are My Landowner Rights During A Quick Take Proceeding?
During a quick take or eminent domain proceeding, you are entitled to interest on the money that is deposited with the court by the condemning authority if you were deprived of your land as well as the funds while waiting for the final judgment.
The Constitution’s Fifth Amendment declares that the government can only take private property for public use, and only if the government pays the private property owners what is considered to be “just compensation.” What constitutes just compensation will be further discussed below.
It is imperative to note that citizens can resist the government’s power of eminent domain by showing one of the following two arguments:
- The property in question will not be used to enhance the public good; and/or
- That the compensation that is being offered is not sufficient.
The first argument can be made by demanding that the agency seeking to take the property produce a resolution of necessity. In order to adopt a resolution of necessity, the quick taking agency must show that:
- The property is absolutely necessary for a specific project;
- The property is in the best location for the good of the public;
- Taking the property would result in the least possible amount of harm to private individuals; and
- An offer to purchase the property has. been made
The compensation that is offered by the government for taking private property only needs to be “just.” The Supreme Court has ruled that “just” only refers to “the market value of the property at the time of the compulsory taking”. However, it may be advised to proceed with contesting the amount that is being offered, as government agencies notoriously fail to actually offer the fair value of the property on the first attempt. Bartering with the taking agency can increase the amount offered. However, if the case goes to court, there is a chance that the jury may decrease the compensation that it awards.
As A Property Owner, Are There Any Defenses I Can Assert Against A Quick Take?
Common legal defenses against a quick take generally include raising historic preservation and environmental concerns. Because the theory of eminent domain is based on “for the good of the public,” an effective defense would prove that the quick take would actually harm the public in some way. An experienced eminent domain law attorney can advise you of your rights and remedies under quick take proceedings, including whether there are any defenses available to you based on the circumstances of your specific case.
If you refuse to leave the property when the final determination is made in the condemning authority’s favor, you will be required to pay rent for your time on the land. Additionally, you will not be entitled to the interest on the funds that were deposited with the court.
What Else Should I Know About Eminent Domain?
Strictly speaking, police damage or confiscation of property during an investigation or pursuit of a criminal falls under the government’s police powers, and not its power of eminent domain. Regardless, most states have policies which require the compensation of third parties whose property was damaged, destroyed, or taken because of police action.
Local governments, developers, and landowners have all found alternatives to Eminent Domain. These alternatives include, but may not be limited to:
- Negotiated Purchases: The private parties may meet together and contract a sale of the property in question, without the intervention of any government agencies. Should you choose to take this type of action, hiring an experienced eminent domain lawyer is highly recommended because of the complex nature of the laws involved with such a transaction;
- Leases: The private parties may meet and agree to a lease relationship in which the existing landowner rents the property to the would-be quick taking party, without the intervention of any government agencies;
- Joint Ventures: A joint venture provides the landowner with the opportunity to make a greater profit by participating as a co-developer. This can also be completed without the intervention of any government agencies; or
- Land Swaps: The developer can purchase another property which the landowner expresses interest in, and then swap the two properties. Once again, this can be completed without the intervention of any government agencies.
To reiterate, hiring an experienced eminent domain lawyer is highly recommended for any of these kinds of transactions.
In 2005, the Federal Supreme Court ruled that it was considered to be public use for governments to take property from one private owner, and give the property to another private property owner. However, the decision proved to be immensely unpopular and many states have passed laws or constitutional amendments which largely restrict the use of eminent domain. On the Federal level, an executive order was issued in 2006 which restricted the federal government’s eminent domain powers to public use only.
Do I Need An Attorney For Issues Associated With Quick Taking?
If you are experiencing a quick take, or have any questions regarding quick taking, you should consult with an experienced and local real estate attorney as soon as possible. A local lawyer can help you understand your rights and legal options according to your state’s specific laws that govern eminent domain. An attorney can also represent you in court as needed, and determine whether there are any legal defenses available to you.