An Overview of Eminent Domain & Condemnation In South Carolina - Part 3 of 6
What happens, and when, during a condemnation action?
The Condemnor begins the planning process for a public project. Surveyors and Engineers may enter the Condemnee’s property. Preliminary Plans for the project are designed. Condemnees are usually notified of property which will be taken for the project. The Condemnor assigns or hires appraisers to make an appraisal. Sometimes, administrative offers are formulated without an appraisal. Condemnor’s appraiser begins to research the surrounding market and appraise properties.
A Right of Way Agent is assigned to present an offer to the Condemnee based on the appraisal or the administrative offer and to negotiate for the purchase of the property.
If the Condemnee accepts the offer, the property is sold in lieu of condemnation under the terms of the offer. If the title is clouded, the Condemnor may have to condemn even if the Condemnor and Condemnee agree on a figure.
If an agreement is not reached, the Condemnor will file a condemnation action with the Court. The Condemnor can choose to use an Appraisal Panel or to use the Court System.
The Condemnee receives notice of the commencement of the condemnation action. Usually, the Condemnor will request a jury trial but may request a non-jury trial. The Condemnation laws also provide that an Appraisal Panel may determine just compensation. The Condemnee has no option or right to object to the choice of Appraisal Panel or Trial to begin the process.
Possession of the property is typically given to the Condemnor while the just compensation issue is considered by the Condemnee in preparation for a trial on the issue. To obtain possession, the Condemnor pays the full amount of its offer of compensation (the "Tender") into the Court. The Court may then release some or all of the Tender to the Condemnee. If less than 100% is withdrawn, the Clerk of Court keeps the remainder until the case is resolved.
A hearing is held and the jury or appraisal panel decides the just compensation. Sometimes a Judge or Special Referee will decide just compensation if that is what the parties agree.
The Condemnee receives the amount of the verdict, plus interest at the legal rate on all amounts over and above the amount paid into the Court for possession.
If the verdict beats a "split" between the highest amount testified to by the Condemnee and Condemnor at the hearing, the Condemnee may ask the Court to award his/her costs and attorneys’ fees. The split is the result when the two highest amounts testified to by the Condemnee and Condemnor are added and divided by two. For example, if the Condemnor testifies to $300, and the Condemnee testifies to $600, then the split is $450. The Condemnee may not recover his costs and attorneys’ fees if the verdict is anything less than $450.
Both parties have the right to appeal from the jury, appraisal panel or judge, if desired. If other parties (mortgage companies, lien holders, family members) have an interest in the property, the court may have to decide how the award of just compensation is divided between these parties. The court holds this special hearing without a jury. The Condemnor has no role in influencing or deciding how the money is divided.
Who serves on the Trial Jury?
The jury is selected from qualified citizens. The judge will summon a jury panel of approximately 25 to 40 prospective jurors. From those prospective jurors, the parties and their lawyers will select 12 people, and perhaps one or two alternates, to listen to the evidence and to decide the case. The alternates serve in the event that one or more of the jurors selected is excused during the trial.
Who serves on the Appraisal Panel?
The Appraisal Panel consists of one appraiser chosen by the Condemnor, another chosen by the Condemnee, and a third selected by the other two appraisers.
What is a drawdown?
Sometimes the Condemnor tenders the payment of just compensation (the "Tender") to the Condemnee after the commencement of the condemnation action. If a Condemnee takes a drawdown, the Condemnee may be able to ask a jury for more money later and use the Tender in the meantime. The idea behind this is that the Condemnee should be able to use the money because he or she cannot use the condemned property.
How do I know that my interests are protected and my concerns are being addressed?
Sometimes the amount of just compensation is not the only issue of concern to a Condemnee. In this case, it is important that you consult with an experienced eminent domain attorney to address other matters: access to the property after the project, drainage on the property after the project, etc. Many times, a Condemnee will not even spot these issues until much later -- when it is too late to address these issues.
An experienced condemnation attorney can spot these issues and potential problems. An experienced condemnation attorney can negotiate with the Condemnor to address the Condemnee’s concerns about these issues and other potential problems.