An Overview of Eminent Domain & Condemnation In South Carolina - Part 4 of 6
Transfer of Possession
When will I be required to give up my property?
There are a number of ways the date for surrender of possession of your property may be determined. The date for surrender of possession is determined in different ways depending on whether the acquisition is accomplished by condemnation or by a sale of the property instead of condemnation.
If the Condemnee sells his property to the Condemnor, then the Condemnee and the Condemnor will agree upon a mutually acceptable date for surrender of possession. This mutually agreeable date is usually arrived at through negotiations but with plenty of time to plan for the transfer of the property.
The Condemnee typically indicates the time he needs to conclude business at the condemned property and relocate to a new site. The Condemnor typically indicates the time it needs to take over the property and demolish the buildings so as to meet its construction timetable. The Condemnee and the Condemnor usually negotiate a date to surrender possession which meets both parties’ objectives.
If the Condemnee does not sell his property to the Condemnor, and the Condemnor acquires it through condemnation, then the Condemnee must surrender possession about the time of the condemnation. If the Condemnee will be required to move from the property, relocation benefits are typically available and a reasonable time for moving is allowed.
NOTE: The Condemnor has a statutory right to enter the property before condemnation for specific limited purposes – such as surveying and appraising. This does not permit the Condemnor or its agents to destroy property or interfere with the Condemnee’s activities on the property.
If you object to the Condemnor’s agents’ activities, contact your attorney immediately. It is never appropriate, necessary or useful to threaten or harm the Condemnor’s agents or contractors.
Appraising the Property
How will my property be appraised?
The Condemnor usually selects an appraiser who writes an appraisal report which the condemning authority uses as the basis of an offer and negotiations. The Condemnee should ask for a copy of the appraisal report and consider and evaluate the appraisal conducted by the Condemnor.
A Condemnee who is unfamiliar with appraisals, or who desires a second opinion, may wish to seek the advice and counsel of an experienced eminent domain attorney. Attorneys who practice condemnation law can typically retain an appraiser who is familiar with the particular problems presented by the taking of your property and assist you in obtaining an expert appraisal opinion. The Condemnee does not have to accept the amount offered by the condemning authority if the Condemnee believes that the Condemnor’s appraisal is incorrect or unfair.
Property to be taken for condemnation is supposed to be valued assuming that the project for which the property is being taken was never planned, designed or constructed. The reason for this rule is to be fair to both the Condemnor and the Condemnee.
For example, if you own property in the desert and the Condemnor announces plans to build a reservoir next to you so that you will own waterfront property, the value of your property may increase dramatically as a result of the announcement of the project. When the Condemnor then seeks to acquire your property, it is not required to pay the inflated waterfront prices -- the influence of the project is disregarded and you are entitled to receive the fair market value of your property as though the project was never announced.
The same is true where your property values have been diminished, or blighted, because of a project. For example, if you own a residential development and the Condemnor announces a major highway project, the value of your land may decrease. The Condemnor is not allowed to consider the decreased value of your land resulting from the project in determining the fair market value of your land, and must consider the value of your residential development as if there is no project.
Condemnees are entitled to have the value of their property determined based on its highest and best use, which may not be the current use. For example, if the property is being used as a family farm but its highest and best use is as a residential subdivision, it is to be appraised as more valuable subdivision land and not agricultural land. "Highest and best use" involves an analysis of those land uses which are physically possible, legally permissible, economically feasible and maximally profitable.
Condemnation appraising is much different from appraising for settling estates or for mortgage financing or for appealing a tax assessment. Special circumstances arise in condemnation matters and addressing these circumstances effectively requires an appraiser to have special knowledge, training and experience. Of the many appraisers in the state, only a relatively few have the expertise necessary to successfully evaluate the challenges of a condemnation appraisal.