Frequently Asked Questions

Yes, the government’s power of eminent domain gives it the power to take private property; however, this power is not unlimited. The constitutions of the United States and South Carolina condition this power on (1) purpose of the taking being for a public use, and (2) the government paying just compensation.

“Nor shall private property be taken for public use, without just compensation.” United States Constitution Fifth Amendment

““Private property shall not be taken... for public use without just compensation being first made for the property.” South Carolina Constitution ART. I, § 13(A)

The government’s power to take private property arises from its sovereignty and corresponding duty to provide for the common good. Our country has long recognized that when people organize as a society, they relinquish certain rights to the governing body to operate on the public’s behalf. Among the rights ceded to the sovereign is a landowner’s otherwise ultimate dominion over real property. Eminent domain, the power of the government take private property for public use, reflects this societal bargain.

The “public use” requirement limits the scope of taking. For example, the government cannot take more land than is needed for the public project. If the government is widening a road and needs a 0.1 acre strip from a 3.1 acre property abutting the road, it cannot simply expand the taking to include the remaining 3-acres, unless of course it can prove a public use for the remainder of the land.

South Carolina has an additional constitutional protection for landowners to protect private property from being acquired by the government for the purpose of giving it to another private party, for example a private developer. This provision explicitly limits the taking of private property for “public use,” as already stated in the South Carolina Constitution, and rejects any broader notion of a taking for “public purpose” or “public benefit,” such as for purposes of economic development.

“Private property must not be condemned by eminent domain for any purpose or benefit including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.” S.C. Const. art. I, § 13

The South Carolina Constitution prohibits taking private property for the purpose of private economic development. In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court of the United States interpreted federal takings law to allow the government to take property for the purpose of then transferring it to a private person for economic development. Kelo expanded the historic definition and constitutional limitation of “public use” to now reach “public purpose,” concluding that economic development is sufficient under the federal constitution to satisfy the public use requirement.

In 2007, in response to the expansion of public use in Kelo, South Carolina amended its constitution to specifically reject the notion of taking private property for a “public purpose” or “public benefit,” and explicitly rejected economic development as a sufficient basis to support a taking apart from a demonstrated public use.

“Private property must not be condemned by eminent domain for any purpose or benefit including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.” S.C. Const. art. I, § 13

Even before Kelo, the South Carolina Supreme Court had rejected the notion that public use covered a project that was ultimately to be handed over to the private sector.

“It is well-settled that the power of eminent domain cannot be used to accomplish a project simply because it will benefit the public. As we have previously emphasized: ‘The public use implies possession, occupation, and enjoyment of the land by the public at large or by public agencies; and the due protection of the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another on vague grounds of public benefit to spring from a more profitable use to which the latter will devote it.’” Georgia Dep't of Transp. v. Jasper Cty., 355 S.C. 631, 586 S.E.2d 853 (2003).

If your property is being condemned by someone other than the obvious government actors—Federal Government, State Government, South Carolina Department of Transportation, other State Agencies, County or City governments—it is normal to wonder whether that entity can actually condemn your property. There are numerous government actors with the power of eminent domain. Here is a non-exhaustive list of South Carolina state statutes recognizing the power of eminent domain for various government actors:

State Government:

• State authorities, commissions, boards…created to develop waterways, power, dams, canals (S.C. Code § 28-3-20)
• State Department of Transportation (S.C. Code § 57-5-320)
• State Department of Commerce (S.C. Code § 13-1-10)
• State Ports Authority (S.C. Code § 54-3-150)

Other:

• Local government - Counties, Cities, Municipalities (S.C. Code §§ 4-9-30; 5-27-150; § 5-7-50)
• Public Utilities (Gas, Electric, Water) (S.C. Code §§ 58-7-10; 58-7-20; 58-27-130)
• Rural Community Water Districts (S.C. Code § 6-13-10)
• Particular Airports (S.C. Code § 55-11-10)
• Municipal Electric, Water, Natural Gas, Sewerage (S.C. Code § 5-31-10)

No, you don’t have to agree to allow utilities on your land if the utility company is not willing to pay for it or prepared to take it by eminent domain. Taking an easement over property for utilities is a taking under the federal and state constitutions and you are entitled to all the same protections, including the requirement of public use and payment of just compensation. While a utility may have a policy of not paving for easements, preferring instead to negotiate an exchange, for example, free connection or future connection for development, it cannot take an easement without paying just compensation. If you aren’t being offered any benefit in exchange for the proposed easement, you don’t have to agree.

Projects are often designed and approved years before construction begins. This means there is a good chance you will be aware that your property is needed for a public project years before a shovel hits your dirt. Even after your property is condemned, and often after your case is over, depending on the size of the project, it can be years until construction actually begins. The start of construction on your property will vary based on the critical path for construction and may depend on your land’s location, size, utility for the project.

Even though your property hasn’t changed physically, remember that you are no longer responsible for paying taxes on the portion of land where fee simple title (complete ownership) is taken by the government. Be sure your tax bill reflects the adjusted land size. S.C. Code 28-2-110.

The government exercises its power of eminent domain through legal action called condemnation. Condemnation is civil litigation. All the rules of civil litigation apply—written discovery, depositions, subpoenas, motions practice, expert discovery. Your attorney needs to have extensive civil litigation experience.

Condemnation is a unique civil action with its own set of rules, guidelines, and complexities. Your attorney should be extremely familiar with condemnation, concepts of property use, how to evaluate and frame impacts to property use and access, and the multiple theories of valuation and components of just compensation. Condemnation involves working with expert witnesses such as appraisers, engineers, various real estate industry professionals, and those with specialized expertise bearing on your unique property impact. Experience finding and working with various experts is critical.

Like all civil litigation cases, condemnations are required to go through mediation before reaching trial, so it is important that your attorney is experienced in mediation presentations and negotiations. Trial skills (jury selection, jury argument, presentation) are also important because you have a right to a jury trial if your case is not resolved at mediation.

Finally, strong writing skills and appellate advocacy skills are important. Condemnation / Eminent Domain is constitutional law. Advocates with the ability to draw on constitutional principals from the United States Supreme Court and South Carolina Supreme Court will be more agile in making arguments and more confident is pressing for full and fair compensation.

The attorneys with SC Takings have extensive civil litigation experience, have tried cases, and have handled appeals in state and federal court. Contact us to explore if we are the right fit for your legal needs.

Apart from the fact that your appraisal is several years old, which means it will not reflect the market value of your property at the date of condemnation (the measurement date), there are reasons why a new appraisal prepared by an appraiser with condemnation experience is essential.

Condemnation appraisals are often very complex. The appraiser must value the property as-is before the project, and then value the property as-it-will-be assuming the project is fully complete. This is essentially two appraisals in one—the before appraisal, and the after appraisal. The before appraisal is similar to your purchase appraisal. Locating comparable sales and valuing your property on the sales comparison approach, income approach or cost approach, as applicable.

The after appraisal involves a similar analysis but using a hypothetically modified property. A future property that perhaps has fewer access points, irregular shape, less parking, more noise, closer in proximity to traffic, or changed drainage patterns. Any number of these changes may also require reliance on additional experts and incorporation into the written appraisal. The appraiser is seeking to value your future property under these changed conditions. This often involves a much more complicated analysis than a purchase appraisal. Additionally, the appraiser will more often than not be subject to a deposition and must be prepared to give trial testimony to a jury. Your appraiser must be prepared to justify every aspect of their before and after valuation. Not every appraiser has these skills or interest in being deposed and testing in front of a jury.

For these reasons, your condemnation appraisal will often be much more extensive and more expensive than the typical bank purchase appraisal that seeks to support an already agreed-upon purchase price between two willing market participants. It is important to select the right appraiser for the job.

The answer to this question depends on your jurisdiction and the stage at which your case concludes.Some jurisdictions require attorney’s fees and costs to be added to the amount of just compensation in all circumstances, unfortunately, South Carolina is not one of them.In South Carolina, you are only able to recoup your attorney’s fees and costs at the judge’s discretion if you present your case to a jury and the jury awards you an amount of just compensation that is at least as close to the highest valuation testified to on behalf of the landowner as to the highest valuation testified to on behalf of the condemning authority.

In an inverse condemnation case (where the government does not recognize a taking so the landowner is forced to initiate a lawsuit), if the landowner is successful in proving a taking, the government is required to pay attorneys fees and costs.S.C. Code § 28-11-30.

It largely depends on whether you plan to testify to an amount of just compensation during trial. In South Carolina, the only two persons who can testify in court to real property values and just compensation are the landowner and an appraiser. If you plan to testify to the value of your property before the taking and after the taking, you will likely be deposed because the government will want to explore the basis of your valuation. If you plan to rely solely on your appraiser for valuation, the government may decide not to depose you. Even if you do not plant to testify to property value, if there are unique facts that relate to the impact of the taking/project on your property, the government may want to depose you to understand these facts.

In our experience, many landowners, especially commercial business owners, land developers, and longtime property owners, have the strongest grasp on the best use of their property and how the public project is impacting that current or potential use. These landowners will almost always be deposed and will offer critical facts supporting their claim for just compensation.

Because landowners are often very familiar with their property and its current and potential uses, they may need little preparation; however, some preparation is always prudent. One critical point to establish before the deposition is whether the landowner will offer its own testimony of value. If so, the landowner will need to be prepared to explain how it arrived at its value. Taking time before the deposition to walk through this testimony will be useful for the landowner and its attorney. The landowner should review its history of ownership, its past, current and future plans for use of the property. The landowner should also become familiar with the taking, where it is located, and be able to articulate how the taking impacts the existing or future use of the property. If the landowner is relying on a future use or development to establish value, it should be prepare to testify to what steps have been taken toward that future use. Have any market studies been completed, have plans been prepared, presented to local zoning authorities, approved or are pending? A landowner should be prepared to answer all of these questions.

The drafters of the Bill of Rights chose “just compensation” as the measure of the government’s responsibility when it takes private property for the public use under the Fifth Amendment. The brilliance of this phrase is in its vagueness, which has allowed it to apply to varying scenarios for over 200 years. The frustration of this phrase is in its vagueness, which has allowed courts to ignore aspects of compensation that are surely just. Just compensation sounds fair and reasonable, but in practice it is much harder to define than expected and its practical application is limited.

Generally, it has come to mean fair market value, or that value that a willing buyer is willing to buy at and a willing seller is willing to sell at, with neither being under compulsion to act. Another way to describe just compensation is to place the landowner in as good a position after the taking as before. In reality, you are a landowner, you chose to own land. If your land is taken from you, there is no true substitute that will make you whole. For example, if the government takes your income producing property, there may not exist any available market substitutes to replace your income stream at the amount of just compensation you received. In this scenario, it hardly feels “just” to find yourself in a less favorable financial position.

Where your entire property is taken, you are entitled the the fair market value of your property at its highest and best use. Where only a portion of your property is taken, you are entitled to the fair market value of the property that is taken, plus any damages to the remaining property, also known as severance damages. These severance damages will include any changes to the highest and best use of your property, impacts on how the property is currently used or could be used in the future, and any collateral impacts from he project itself. All of these together make up just compensation.

Unfortunately, lost business income is not compensable in South Carolina. However, what this could mean is that your property is less valuable than a comparable property that has not been impacted by the project. This difference is compensable. Additionally, where there is a temporary construction easement on your property, the government must compensate you for this use of your property.

Proximity: How close will the project/improvements come to your remaining property? Will a new or widened public road come closer to your building or impact your existing use of the property? How close will the new power line or sewer line be to my existing business/home? Do I have new safety concerns with traffic for my customers entering or existing my business? Do I have noise concerns related to the final project?

Change Existing Use: Does the project impact how you currently use your property? Do I lose any parking spaces for my business. Did I have excess parking before the project or just enough parking? If my building was at full capacity, will the after parking be able to fully support the building fully leased? Can customers still access my business in the same manner as before?

Change Future Use: Does the project impact how you planned to use/develop your property in the future? Are my expansion/development plans still viable?

Access: Does the project change how vehicles will access my property after the project? Do I still have the same number of access points after the project? Does the character of my access points change, for example are there any new restrictions on turning in to or out of my property (example full access changed to right-in, right-out)? Will visitors to my property still be able to access and use all areas of my property? Has use of any areas of my property become more difficulty or obsolete because of the project? Are patrons more or less likely to visit my business after the project?

Visibility: Does my business still have comparable visibility to before, or am I obscured by any aspects of the new project? Do I have seclusion or a buffer that was lost because of the project, lost vegetation or road widening?

Noise: Does road noise factor into how people use my property? Is there an increase in road noise with the new project such that it will negatively impact the use and enjoyment of your property?

Safety: Are there safety concerns with how the government has designed the project? Will the project make it more or less dangerous for employees, customers, or the public at large to access my business?

An attorney can’t change the value of your property, make it more valuable, or change the facts. The government is constitutionally required to pay just compensation regardless of whether or not you are represented by an attorney.

However, hiring an attorney does several things. It lets the government know that you will not just accept its offer of just compensation without adequate justification. It places you on equal footing with government, who will undoubtedly hire an attorney if it is required to condemn the property. It also helps you navigate the legal system, which can be complex and difficult to navigate on your own, and in some instances cannot be navigated apart from legal counsel. For example, legal entities are not permitted to represent themselves in court (pro se) like an individual can. Perhaps most important, hiring a qualified attorney can add significant value to your case because they have been trained to evaluate your legal problems in a way that has your best interest in mind, they know the appropriate experts to hire, and they have extensive experience negotiating similar cases.

If the government gives you a fair offer that you believe represents just compensation, fair market value, and adequately recognizes all negative impacts to your property, then it may be the most prudent business decision to accept the offer and avoid the costs of hiring legal counsel. However, in our experience, the government rarely makes an offer that fully and fairly recognizes all of the impacts to a landowner’s property. If an offer sounds like a great deal, you may want to consider why the government is offering such a “fair” amount and if there is anything you are overlooking.

Our consultations are free. It doesn’t cost you anything to get our thoughts on the impacts to your property and the government’s offer.