Eminent Domain Procedure

Condemnations in South Carolina are governed by the South Carolina Eminent Domain Procedure Act, found in Title 18, Chapter 2 of the South Carolina Code of Laws.  In addition to these state law requirements, there are a variety of commonly accepted practices that Landowners encounter when dealing with a prospective taking of their property. These practices and procedures follow.

Project Announcement

Condemnors will usually make an effort to inform the public of an impending public project. In addition to posting information online, they will often hold public hearings to share project details, answer questions, and receive feedback from the public.

Sometimes there may be several planned project alternatives (for example, different overhead utility transmission line routes), and the Condemnor will not finalize their project until after they have received public input. So, if you have concerns about a project, these meetings provide an excellent opportunity to have your voice heard and potentially influence project details.

Condemnors may also change project plans based on the federal government’s review and approval process, which can be a factor in some cases if, for example, federal money is involved or if the United States Army Corps of Engineers needs to approve certain project parameters.

Ultimately, project construction may not take place until years after the initial public announcement has been made, and until shovels hit the dirt (and sometimes even after), plans can change. Staying informed about project developments is critical to protecting Landowner rights.

Right of Way Agents

After Condemnors know they want to move forward with a project, they regularly hire third-party contractors known as Right of Way Agents (ROW Agents) to approach to-be-affected Landowners and begin the negotiations process.

ROW Agents will often provide copies of project plan sheets showing the prospective takings area and other project related documents. They will attempt to answer any questions Landowners may have, and ultimately will attempt to negotiate a price for the acquisition prior to a court case being filed.

Be advised – if you provide documents or information to a ROW Agent, they can become part of the ROW Agent’s file and potentially become evidence in the case later on. Meeting with ROW Agents can be a productive and helpful process, but ultimately, they work for the Condemnor and are not neutral third-party mediators.

ROW Agents will often request permission to conduct certain inspections of the Landowner’s property. For example, having subcontractors come to the property to test the soil. On behalf of the Condemnor, ROW Agents may also ask for permission to construct drive entrances on the property and enter to the property to begin project construction prior to the Condemnor actually acquiring the property.

Condemnors have statutory rights to do some of these activities, like entering the property to conduct a survey. See S.C. Code Section 28-2-70(C).  However, sometimes the agreements ROW Agents seek grant the Condemnor more rights than necessary and can have adverse effects on Landowners. Careful consideration should take place before signing any such documents.

Offer and Appraisal

On behalf of the Condemnor, ROW Agents will eventually provide an offer of “just compensation” to the Landowner to acquire some or all of the at-issue property. Pursuant to state law, and the United States Constitution, just compensation is defined as the value of the property taken, plus any damages to the remainder of the property minus any benefits to the remainder of the property, if any. See S.C. Code Section 28-2-370.

The Condemnor’s offer will usually be accompanied by an appraisal report performed by a licensed real estate appraiser. Condemnors are required to provide an appraisal to the Landowner before initiating a condemnation action. See S.C. Code Section 28-2-270(A).

After the Condemnor has provided its offer, Landowners will have an opportunity to reply with a counteroffer either with or without their own appraisal report to substantiate their position. Appraisals generally will identify and analyze comparable sales and other market data to establish a valuation for the subject property and prospective condemnation.

Some Landowners are familiar enough with the market value of their property and the impacts of the projects to negotiate directly with the ROW Agents. Landowners are not required to have knowledge of recent sales of similar properties before they negotiate, though this information can be helpful . More significantly, Landowners usually know their property better than anyone else and  canand can offer unique market-based insights into property value and damages caused by the project.

However, note again that any information, documents, or other data provided to ROW Agents can potentially be used in subsequent proceedings. Accordingly, at this stage of the process, Landowners regularly hire attorneys to assist with negotiations and help coordinate with appraisers and ROW Agents.

Condemnation and Litigation

If negotiations with ROW Agents are unsuccessful, the Condemnor will need to file a condemnation action to acquire the property it needs for the project. Unless the Condemnor is a federal agency, the case will be filed in state court in the Court of Common Pleas where the standard Rules of Civil Procedure apply.

The Condemnor will begin the case by serving and filing a Condemnation Notice that includes the Condemnor’s estimate of just compensation and identifies various information about its planned acquisition. See generally S.C. Code Section 28-2-280. The Landowner is not required to file a responsive pleading, see S.C. Code Section 28-2-220(C), though some attorneys will.   At a minimum, attorneys generally file a Notice of Appearance to ensure they receive timely court notifications.  

Note that if the Landowner wants to challenge the Condemnor’s right to take the property, it has thirty (30) days from being served with the Condemnation Notice to file a separate challenge action. See S.C. Code Section 28-2-230(A); see also Section 28-2-470.  Be aware that this thirty-day period begins from the date of service of the Condemnation Notice and not the filing of the Condemnation Notice in court.  Some condemning authorities will serve the Condemnation Notice on the Landowner and then wait thirty days before filing the notice in court in order to ensure that the challenge period has expired.  Based on the sequencing, and whether the Landowner files a challenge action, the Condemnor will receive the right to take possession of the property when, or shortly after, it deposits its offer of just compensation with the Clerk of Court. See S.C. Code Section 28-2-90.

After the initial pleadings process, the discovery phase follows. Generally, this means exchanging written discovery and taking depositions.  Written discovery typically includes written answers to questions posed by the other side specific to the owner s and to the property (interrogatories) and an exchange of relevant documents. During written discovery, the parties will identify persons most knowledgeable about the property and the project (fact witnesses) as well as individuals specifically retained to offer testimony on certain topics such as appraised valuations and engineering issues (expert witnesses).  The parties will depose each other’s fact and expert witnesses and use the information learned to plan for additional discovery and to prepare for trial.  

Prior to trial, South Carolina court rules require the parties to mediate. . Mediation is usually conducted by a neutral third-party attorney whose job is to try to help the parties achieve a settlement. In the event mediation is unsuccessful, the next step is usually more discovery and eventually a trial.  The parties can always choose to resolve the case prior to going to trial.   

In South Carolina, parties to a condemnation action can request trial roster priority, see S.C. Code Section 28-2-310(C), which enables the case to be heard ahead of other pending cases. The parties also have the right to request a jury trial on the issue of just compensation. See S.C. Code Section 28-2-310(C). At the conclusion of the trial, the Landowner is entitled to statutory interest on the amount of just compensation, and in limited circumstances may be eligible to recover reasonable attorney’s fees and expenses. See S.C. Code Sections 28-2-420 and -510.

At the conclusion of the trial, the parties may have the right to appeal certain errors made by the judge or the jury.  While appeals are difficult, cases can be overturned at the Court of Appeals and the state Supreme Court. Those difficult cases are how case law gets made.