An Overview of Eminent Domain & Condemnation In South Carolina - Part 2 of 6
The Right To Condemn
Does the Condemnor have the right to take my property?
It depends. The Federal and State Governments have the power of eminent domain. By statute, all counties and cities and many state and local governmental agencies and public utilities have the power of eminent domain as well.
While a specific governmental body or public utility may have the power of eminent domain, that does not necessarily mean that it has the right to take your specific property.
In order to condemn your property, the Condemnor should be able to prove to a Court that it has the power to do so, that the taking of your property would be a proper exercise of that power, that the taking of your property is necessary, and that the use to which your property is to be applied is a public use.
If you do not consent to the condemnation, the Condemnor must prove to the court that your property is reasonably necessary for a public project. While the courts more often than not allow the requested condemnation, there have been some occasions in which the courts have denied a Condemnor the right to take the property it seeks.
If you do not want your property taken, only the Court can require that your property be condemned. You have the right to file a Challenge Action to attempt to stop the taking. If you prove that the condemnation is wrong, you can stop the condemnation and may even recover some or all of your costs and attorneys’ fees. However, if you are unsuccessful in stopping the condemnation action, the Condemnor may be able to recover its costs and attorneys’ fees from you!
The Challenge Action is not to be used to simply gain leverage for greater compensation. There must be an actual dispute as to whether or not the Condemnor is acting with a reasonable basis in taking the property. Usually, the Condemnor has a reasonable basis for requiring the property.
Challenge actions are often difficult matters involving expert witnesses. A Challenge Action can only be filed within thirty (30) days of the Condemnor’s beginning the condemnation process, so time is of the essence. If you determine that you do not want your property taken, you should discuss this with an experienced eminent domain attorney as soon as possible.
NOTE: The Condemnor's right to condemn is not part of the trial on just compensation. The Challenge Action addresses only the right to condemn. The Condemnation Action only addresses how much just compensation is to be paid to the Condemnee.
Should I be doing anything before my property is condemned?
In general, it is wise for a Condemnee to seek the advice of a lawyer when considering any actions taken with regard to property which is about to be condemned. It is unwise to make assumptions and act without the advice of an experienced eminent domain attorney.
If you consult an Attorney, consider asking these questions:
What portion of the attorney’s total practice is dedicated to condemnation cases? How many condemnation cases has the attorney handled? Has the attorney settled or tried the condemnation cases which he/she has handled? What types of results have been obtained? Are the attorney’s fees going to be calculated on a contingency fee or an hourly basis? Make sure that the attorney answers any specific questions you have about your case or the condemnation process generally.