It’s our South Carolina eminent domain attorney’s belief that nothing is perhaps more ingrained in the American consciousness than property rights. We are led to believe that our “home is our castle.”
Your property rights can come into conflict with the government’s interests in an eminent domain case. The government can take your land away from you, and it often does. However, the government does not get the final say. You can challenge both the land taking itself and the amount of money that the government is trying to pay you.
If the government is trying to exercise its power of eminent domain over your land, you need legal help today. Attorney J. Camden West at The West Law Firm can represent you in any eminent domain proceeding in South Carolina, fighting for your rights as a property owner.
The Government’s Eminent Domain Rights
Eminent domain and land takings have been in the forefront of national consciousness since the Supreme Court’s 2005 ruling in the case of Kelo v. New London. In Kelo, the City of New London took homes that it claimed were blighted to clear the way for economic redevelopment of the city. The court held that economic development was a public use that justified the taking of a private property owner’s land.
That case cast a bright national spotlight on something that the government has been doing since the beginning of the country. In some respects, the extreme reaction to that case has empowered landowners to fight back (even the local government won the right to take the land)/
Given the increasing emphasis on property rights in our society, land takings are extremely controversial. However, there is a long legal history that gives the government a wide berth when taking land for public use. Still, the law does not give the government an unlimited right to take your land.
You can fight any land takings on two key legal issues:
- Whether the taking is really for “public use.”
- Whether the government is offering you fair market value for your property
What the United States Constitution Says About Eminent Domain
The government’s right to take your property is explicitly spelled out in the Fifth Amendment to the United States Constitution. It says:
“nor shall private property be taken for public use, without just compensation.”
These twelve words have generated significant amounts of controversy and lawsuits. They will be what determines whether the government can take your property and whether they have offered you enough money if they have tried.
What Is Public Use of Your Property?
Landowners often challenge whether the taking is really for “public use.” There are limits on what the government can do and the purposes for which they can take your land.
The way that the courts read these words often benefits the government. Public use does not literally mean that your property would be accessible to the general public. Instead, the term is more similar to “for the benefit of the public.”
Historically, the government took private lands for purposes such as bridges and highways. There were many court cases during the time that the nation was building its railroad. In these cases, courts typically gave a wider meaning to the term “public use.” The railroad cases built a wide body of precedent that courts seemingly used to expand the purposes for which the government can take land.
Some reasons when government taking has been upheld include:
- Transit lines and railroads
- Public buildings
These are the more “traditional” uses of eminent domain, where the public use would be less in question. However, the law also allows certain utilities to exercise the power of eminent domain. For example, in a recent South Carolina case, Dominion Energy was allowed to take homes, so it could build an energy pipeline.
Unfortunately, governments have tended to abuse this power over the years, and some courts have even allowed them to do so. For example:
- Toledo was allowed to take 83 homes for Chrysler to build a manufacturing plant (the public use was that it was supposed to create jobs).
- Las Vegas was able to take an apartment building that an elderly woman owned to make way for a casino.
- The Supreme Court upheld New London’s taking of “blighted homes” to allow for “economic development”.
You are starting off in a difficult position if you challenge the taking itself. Generally, you would need to prove that the taking was to benefit a private party. If your case is in federal court, the judge would give some deference to the legislature when it states the public purpose of the taking.
However, you should never give up on your property. You may still be able to stop the government from taking your land when you can challenge the purpose and argue that the “public use” is really private.
Just Compensation for the Taking of Your Land
The second requirement of the Fifth Amendment is that the government pay you “just compensation” for the taking of your land.
The legal measure of “just compensation” is fair market value. However, fair market value is often in the eye of the beholder.
Fair market value is supposed to be measured as the price that a willing buyer would pay for the property. The government would hire its own appraiser to determine fair market value. You may choose to retain your own appraiser. The government’s number is most certainly going to be lower than the amount your property is really worth.
Lawsuits Challenging the Valuation of Your Property
The most common reason why a property owner sues the government is because they are not being offered enough money for their land. Here, property owners actually have a better track record of success.
While the government initially determines what it believes fair market value to be, it does not have the final say. The government is like any negotiator when it is paying for property. It may make an opening offer, which is included on the condemnation notice. The government knows that it would need to negotiate. Thus, your course of action may be to refuse the initial taking and make the government take you to court.
South Carolina Law on Eminent Domain
Since the Supreme Court seemingly opened the door for a wide variety of takings in Kelo, the South Carolina Legislature passed its own response. The state prohibited the taking of private land for economic development purposes. In addition, South Carolina tightened the definition of what may be considered blighted that would allow the government to take property.
South Carolina laws and the court system have relatively strong protection for property owners, in fact. You could stand a much better chance of proving that the taking was not for public use when you file in state court under South Carolina law.
The first favorable aspect of South Carolina law is that the taking is suspended, so long as the court action is pending. The government is the one who needs to file the lawsuit in court to take your property.
Property owners have prevailed in several recent South Carolina lawsuits. For example, one property sued and was able to stop the taking of their land to build a park.
The Eminent Domain Process in South Carolina
You may find out of the blue one day that the government plans to take your property. You may have had some warning because you were hearing rumors or seeing things on the news.
South Carolina law allows the government entity to serve you with a notice that they are taking your property. They do not need to go to court first. They can simply tell you that they are taking your property from you and give you a number that they are claiming is fair and just compensation for property that could be your home or has been in your family for generations.
You would be expected to respond to the notice within 30 days. You could either accept the taking and the amount of money that you have been offered, or you can reject it. If you do not respond to the notice, you would be deemed to have rejected it.
If you do not accept the terms of the taking, the government would file a lawsuit to take your property. The court would rule whether the government has the right to exercise its power of eminent domain over your land.
Filing a Lawsuit for Eminent Domain
In South Carolina, property owners are fighting back even more than they had in the past. There has been a spike in recent lawsuits that either challenge the taking itself or the compensation being offered.
You do not have to simply accept what the government offers, or allow them to take your land. While the government has the right to eminent domain, it comes with strings attached. If you believe that the government has not followed the law, you can fight them in court.
What You Can Recover in an Eminent Domain Case
If the government seizes your land entirely, you would be entitled to just compensation for you. In some cases, the government only takes part of your land. Not only would you be paid the full value of the land that the government took, but you would also be compensated for the loss in value of your remaining land because of the taking.
You could be paid for the following:
- The loss of the use of your existing land
- The loss of access to roads or other utilities
In general, you would be entitled to be paid based on the difference between the value of your land before the taking (based on the highest and best use) and the remaining value of your land.
There is a special kind of taking where the government does not actually take possession of your land. However, their lawmaking and regulations may deprive you of the use and enjoyment of your land. You can also file a lawsuit for compensation when the local government has passed laws or regulations that effectively deprive the owner of all economically beneficial use or enjoyment of their land.
Government regulation can go too far, even when there is a legitimate purpose for it. You may not be able to stop the regulation itself, but you can receive compensation for the loss of your own property rights.
Why You Need a Lawyer for an Eminent Domain Case in South Carolina
When you are challenging the taking of your land, you are literally fighting the government. It would be difficult to go into court (which is what you have to do) on your own. You would be up against government attorneys who come into court thinking that the law is on their side.
Eminent domain cases often involve complex issues of valuation. You may also need to obtain evidence from the other side in the discovery process.
Most eminent domain cases do not proceed all the way to trial. Since many of these lawsuits involve the amount of compensation, you may end up negotiating with the government. Over time, you may get closer to a settlement. Eventually, you will reach an agreement.
While eminent domain trials are rare, you need to be prepared to go the distance with the government. The prospect of losing the case in court is what will push the government to be more reasonable in settlement negotiations.
Contact Our South Carolina Eminent Domain Attorney Today
If you get an eminent domain notice, contact Attorney J. Camden West at The West Law Firm today. You must act immediately in an eminent domain case to have the best chance of protecting your own legal rights.
We will evaluate the situation for you, helping you determine the best way to fight the government if it is necessary. We can also negotiate a solution on your behalf. You can call us today at 843-483-8630 or send us a message online to discuss your case. When you are angry and confused about what the government is trying to do, get legal help immediately.
Eminent Domain FAQs
Do I need an eminent domain lawyer?
Eminent domain actions are exceptionally challenging, and the surest means of retaining your property or obtaining compensation that fairly covers the property’s actual value is with a dedicated eminent domain lawyer in your corner.
What if my remaining property is decreased in value?
If you lose part of a property to eminent domain, the remaining property could take a hit in terms of its value and usefulness. As such, you can include this financial loss in your calculation of your property’s fair market value.
How can I fight the government?
The state does not have an overarching right to take your property and can only do so if there is verifiable public purpose. Typically, this means for a purpose such as improving safety and traffic flow by building out a road. If the government can establish a public purpose, it is required to compensate you for your loss with the property’s fair market value. If you’re facing an eminent domain action, you’re not alone — a seasoned eminent domain lawyer can help.