An Overview of Eminent Domain & Condemnation In South Carolina - Part 1
If you are involved in this process, this overview (Parts 1 - 6) will provide you with some basic information about the acquisition process in the State of South Carolina.
While we hope that this overview is helpful to you, please remember: The information provided is general and not intended to apply specifically to your case. The facts in every case vary. Please do not use this overview for precise guidance on your particular case. This overview is no substitute for consultation with an attorney experienced in eminent domain law or condemnation law.
Paul D. de Holczer - deHolczer Law PC
This is not legal advice and it is not intended that this guide create an attorney-client relationship. The reader is advised to consult an experienced eminent domain attorney with regard to the material discussed within. Please review the Notice and Disclaimer at the end of this brochure.
What is Condemnation?
Condemnation is the act of taking private property for a public use and is also a shorthand term to describe the process of taking private property for a public use. The power of condemnation is also known as the power of eminent domain. The power is established by the South Carolina Constitution, as well as the United States Constitution.
The rationale for condemnation is that the government is empowered with the right to take private property for public uses for the good of the general public. When building a road, for example, the power allows the government to design the road in the manner which will most benefit the general public and acquire the necessary lands to carry out its design. Roads can therefore be designed so they are straight, for example, rather than having to curve around the land of all of the owners who were unwilling to sell their property for the road. In return for being forced to give up their property, individual owners are constitutionally entitled to receive full and fair compensation, typically referred to as "just compensation."
Who can take my property?
Federal, state and local governments have the power to condemn private property, and this power has been delegated to many governmental agencies. Thus, for example, the South Carolina Department of Transportation has the power to condemn your property. The government has also delegated the power of eminent domain to various public utilities (water, sewer, power).
Many condemnations are initiated by State, County or City Government, rather than by a utility like South Carolina Electric & Gas, or a local sewer or water authority, or other entity with the power of eminent domain. The "taker" is called the "Condemnor" or "condemning authority." Throughout this brochure, we will refer to the taking power as the "Condemnor."
A person who owns record title to property is a "Landowner." A person in possession of the property but without record title (such as a tenant or lessee) or a person with a record interest less than title (such as a mortgage company, or someone holding a lien against the property) is an "Other Condemnee." Throughout this brochure, we will refer to both the Landowner and Other Condemnee as "Condemnee." Although there are important differences between a Landowner and an Other Condemnee, this brochure does not address the differences.
Can the Condemnor take my property for any reason?
No. The Condemnor may only take your property for a public use, not a private use. The following is a list of some of the things which are considered to be public uses: construction of reservoirs for water or storage basins for storm water, irrigation, rights of way for the construction of canals, ditches, flumes or pipes to carry water, roads and highways, railways, tramways, cuts, tunnels, shafts, hoisting works, dumps, power lines, power plants, gas lines, public buildings, sewer plants and sewer lines, parks and boat landings. There are many other public uses as well.
Who decides whether the condemnation of my property is for a public or private use?
Only a judge can decide. Even if the Condemnor believes the condemnation is for a public use, under some circumstances, a judge can rule otherwise and deny the Condemnor the right to take your property.
How will I know whether the Condemnor really wants to take my property?
In most cases, you will learn far in advance of the proposed construction date of the project which may require the taking of your property. Your first knowledge of the project may come from reading a newspaper article or talking to a neighbor. Sometimes the Condemnor will advertise the project.
In some cases, the planning process takes several years and project plans change several times. You may not know for certain whether the Condemnor needs your property until they notify you and begin the process to acquire your property, which means starting to negotiate with you about the acquisition.
What can the Condemnor take?
It depends. Statutes usually define what specific rights a Condemnor may acquire. Sometimes the Condemnor takes fee simple ownership -- that is, all the rights and title to the property. Sometimes the Condemnor takes a right of way or easement – that is, an interest in the property, leaving title to the property with the Condemnee.
Sometimes the Condemnor takes a whole parcel of property, but often only takes a portion of a particular property.