LEGAL GUIDE
Written by attorney Kevin W Roberts | Sep 9, 2010

Washington Eminent Domain -- Your Rights When The Government Takes Your Property

YOUR RIGHTS WHEN THE GOVERNMENT TAKES YOUR PROPERTY

"No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner..." Washington State Constitution.

The right for a landowner or tenant to be fully and fairly compensated when the Government takes or damages your property is one of the most basic and fundamental rights we have as citizens. Whether described by the Government as "Eminent Domain", "Condemnation" or a "taking", these words mean the same thing, namely that the Government is exercising its power to take or damage your private property for a public use.

Typically, this is done in connection with the construction of a roadway or for the construction of some other public facility. A few examples of projects on which our law firm has represented Landowners against the Government include the North-South Freeway (State of Washington), Flowery Trail Road 49? North (Stevens County), Highway 395 (State of Washington), SR 26 Interchange (Othello), the straightening of Five Mile Road (City of Spokane), and the Seattle Monorail Project (City of Seattle). This informational guide explains some of your basic rights when the Government tells you they need your property for a public project.

A. CAN I BE FORCED OFF MY LAND? After initial contact by the Government, Landowners or tenants are too often told that they will be required to leave their property by a certain date. This statement often increases a property owner's anxiety and convinces the owner to accept less than fair market value. The truth is that the Government cannot take or damage your property without either:

  1. An Official Court Order - which requires the Government to actually start a lawsuit and have a jury determine the just compensation to be paid to you; OR

  2. Your Agreement - Without a Court Order, the only way the Government can take your property is with your agreement to sell the property to the Government, or by your agreement to provide the Government early or immediate possession and use while the fair market value of the property to be paid to you is being determined.

Quite simply, no Government representative has the power to force you to leave your property without one of these two things occurring first.

B. WHAT AM I ENTITLED TO RECEIVE AS VALUE FOR MY PROPERTY TAKEN OR DAMAGED?

  1. Value is Determined Based Upon Fairness to the Property Owner. The eminent domain laws in the State of Washington require the property owner to be paid "in the same position monetarily as he would have occupied had his property not been taken." In determining what constitutes fair compensation the Courts are guided by considerations of fairness and justice. This means that ultimately, as it relates to their property, Landowners are entitled to present "any evidence which would enable the jury to determine..." fair market value.

As a result, you are entitled to payment for the value of your property based upon its "highest and best" use. This use can be different than how the property is currently being used. This also means that value is not necessarily limited to existing zoning. If there is a reasonable probability that zoning for your property can be changed in the near future, the effect of that probability on the Fair Market Value may be considered. Evidence of the type and amount of business conducted on the property may also be admitted to show the types of uses to which the property was adapted.

  1. Specific Considerations. a. Partial Taking. If only a portion of your property is taken, the Government must not only provide just compensation for the property it is taking, but it also must pay for the damage to the value of the remaining property. For example, if property is taken to widen a road, moving the road closer to a building may decrease the value of the remaining building and property.

b. Improvements. The value added by any improvement you have made to the property being taken must likewise be considered. For example, fences, landscaping, sprinklers, etc.

c. Access. If the Government's taking affects your reasonable, adequate and commercially practicable access, the Government must provide just compensation to pay for taking or damaging that access, as well as the effect on the value of the remaining property.

d. Easements. Oftentimes, the Government also seeks to acquire a temporary "construction easement" allowing it to enter onto your remaining property while its project is being built. As a Landowner you are entitled to receive just compensation for the value of this or any other easement the Government seeks. Too often the Government will propose payment of an unreasonable or nominal amount which it indicates is "always" the amount it pays for construction easements.

However, this proposed amount is often not even remotely close to the value of what the Government is asking to take or use. Landowners should ask for specific information concerning the length of time, location and scope of any such easements so that you and any appraiser you retain can determine the actual fair value that should be paid for such easement.

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