Eminent Domain Commercial Properties

We work with a lot of business owners.  Here are some of the most common questions business owners have asked about the condemnation process.

Q. Should I expect to see any activity on my property before the government files a condemnation action in court? 

A. Yes, there are certain activities that condemning authorities are allowed (or required) to complete before filing a condemnation action.  These may include:

• Surveying
• Environmental Testing (soil borings, evaluation of potential environmental liability)
• Appraising (including a site visit by the appraiser)
• Title Research
• Contact from a Right of Way Agent to explain the project and make a monetary offer

Q. The government is asking to start the project on my property before it has filed a condemnation action, can they do this, should I agree?

A. In situations where the government needs access to the area of taking on your property before they have filed the condemnation in court, the government may request a Right of Entry Agreement.  This agreement allows the government and its contactors the ability to access the future area of acquisition to begin construction and meet project timelines, which may not always align with when the condemnation is ready to be filed.   This can also be a useful tool when you are in active negotiations with the condemning authority on compensation or design changes and you are hoping to reach a resolution short of going through the court process.  A Right of Entry Agreement requires your consent.

Under the typical condemnation process, the law allows the government to take possession of the area of acquisition and begin construction as soon as they deposit their estimate of just compensation into court.  In this typical scenario, after the government has deposited funds into court, it can take possession of your property that it is acquiring, it does not need your permission to begin construction, and it does not have to wait until the court case has been resolved to begin the project.  Keep in mind that the government cannot go onto your property outside of the area of acquisition unless it is also acquiring a temporary construction easement.  A temporary construction easement gives the condemning authority temporary use of an additional portion of your land only during construction.  The government must pay for this temporary use.    

If you agree to grant a Right of Entry, allowing the government and its contractors to conduct activity on your property while you still own it, you should also consider requiring indemnity from contractors for any activities conducted on your property, especially if you are actively using the rest of the property for ongoing business operations.  You should also consider including a right to terminate the Right of Entry at your discretion.  Talk with your attorney about other matters you may need to consider before granting a Right of Entry.   

Q. Am I entitled to compensation for lost business income?

A. Lost business income is not compensable.  However, to the extent the taking impacts the value of the remaining real property for conducting the business after the taking, this can be considered in your overall payment of just compensation.  

Q. How long will the condemnation process last?

A. The court process typically lasts 12-24 months.  The pre-condemnation process can last much longer because most public projects require gathering public input, environmental and other regulatory approvals, ongoing designs development, and securing funding.  It is not uncommon for landowners to be aware of projects impacting their property three to five years before their land is ever touched by construction. 

Q. What if I am forced to relocate by business because of a taking, will the government pay for that?

A. Relocation expenses generally fall outside of the constitutional requirement for the payment of just compensation for a taking.  However, both South Carolina and the Federal Government have separate statutory and regulatory guidelines for relocation assistance.  In South Carolina, relocation assistance typically falls into four categories: (1) search costs; (2) actual moving expenses; (3) losses of tangible property you cannot move; and (4) reestablishment expenses up to $50,000 for items such as refurbishing your new location.  If you are not going to reestablish your business, you may be eligible for a limited one-time payment based on past earnings at that location. 

Q. I have tenants that must vacate my building because of the taking, are they entitled to any assistance?

A. Yes, tenants qualify for relocation assistance.  Typically, the right-of-way agent will be in contact with each impacted tenant to discuss available assistance.  

Q. Can the government take my land and then give it to another person for economic development?

A. No.  In 2007, the South Carolina Constitution was amended to specifically prohibit the taking of private property for any purpose other than for public use, including economic development.  Public use has been interpreted by South Carolina courts to mean “possession, occupation, and enjoyment of the land by the public at large or by public agencies.”  Georgia Department of Transportation v. Jasper County, 355 S.C. 631 (2003).  This means that projects and improvements must remain under public control after completion and not be turned over to private parties for private operation.   

Representative Types of Businesses We’ve Worked With

• Gas station / C-Store
• Entertainment Venues
• Industrial
• Car Wash
• Ground Lease / Outdoor Advertising
• Land Developers
• Office Space
• Storage Facilities
• Restaurants
• Apartment Complexes
• Marina
• Retail Buildings