Pre-condemnation planning is critical for any property owner whose land is in the path of a
proposed government project. Under the power of eminent domain, the government can
forcibly acquire private property for public use. However, the owner must be appropriately
Even though it may be possible for property owners to stop the government from taking
their land, most challenges fail. Therefore, the most common dispute is over the price the
government must pay making sure the property owner’s rights are protected throughout
the process. This article will explain the basics of pre-condemnation planning to protect
your property and offer tips on protecting your property rights.
Conditions for Government Seizure of Property
The Fifth Amendment to the United States Constitution protects Americans from having
their property “taken for public use without compensation.”
Eminent domain is the power to take any property for public use without the property
owner’s consent in exchange for the payment of just compensation. The government can
only exercise eminent domain for “public uses”, such as building a highway or a public
school. However, “public use” can also include taking property from one private owner and
giving it to another private owner to eliminate blight in a designated redevelopment area.
You should contact an experienced eminent domain attorney to protect your rights if the
government wants to take your property.
The government must have a legitimate reason for taking your property and must
compensate you fairly. If the government does have the right to take your property, you are
entitled to just compensation. Just compensation means that you must be paid the fair
market value of your property.
“Fair market value” is defined as the amount of money that a purchaser, willing, but not
obligated, to buy the property, would pay to an owner willing, but not obliged, to sell in a
voluntary sale. The fair cash market value of the property must exclude any appreciation or
depreciation in value proximately caused by the condemnation project for which the
property is being taken.
The Eminent Domain Process
The eminent domain process is when governments and other entities acquire private
property for public use. The government typically must show a public purpose to acquire the property, such as for a road or public building. The property owner is entitled to just compensation, although it may dispute the amount.
The process typically begins with an offer of compensation made to the property owner,
followed by possible negotiations and, if unsuccessful, a court case to determine the fair
The court may also consider whether the taking of the property is truly for a public
purpose. Because the procedures in court can be complicated, the property owner should
consult with a lawyer to ensure that their rights are being protected.
Basics of Pre-Condemnation Planning
A municipality or other government body will go through its own pre-condemnation
planning process before employing its eminent domain authority to take private land for
public purposes. By the time a property owner becomes aware that the government is
going to take their property, the government has assembled a team of experts including
lawyers, appraisers, and engineers to assist the government with its pre-condemnation
planning. Property owners should hire an experienced eminent domain lawyer so that the
owner is on equal footing with the government and can undertake their own
On the government side, pre-condemnation planning typically includes:
- Developing plans for the future public use.
- Conducting a public hearing or asking for public input on a future public use.
- Surveying the property to be acquired.
- Appraising the property to be acquired.
- Mailing written offer of compensation to owners.
Like the government, property owners should undertake their own pre-condemnation
planning if they become aware of a project that requires the acquisition of their property.
Tips on How a Property Owner Can Protect His or Her Property Rights Through Precondemnation Planning
- Know Your Rights: It is important to know your property rights and understand the
laws that protect them. Contact an attorney to understand the state and local laws to
ensure that the government is abiding by all applicable laws.
- Document Your Property: Keep detailed records of your property, including any leases,
boundary line surveys, deeds, easements , and costs of improvements to the property.
These documents can be helpful to determining the amount of compensation you are owed.
- Think Twice. Before deciding to appeal real estate taxes, listing a property for sale,
changing the title to your property, or rezoning or subdividing the property, an owner should contact an eminent domain attorney for advice if there is a possibility that the government may try to take all or part of their property in the near future. Appraisals obtained by the owner for estate planning or to contest real estate taxes, and listing agreements that offer the property for sale at a certain price may affect the evidence that can be presented in a future condemnation case to value the property. Similarly changing the zoning or the size of your property can affect value.
- Read Your Leases. If your property will be acquired by eminent domain in the near
future, check your existing leases for condemnation clauses that define the rights of the
landlord and tenant in the event of eminent domain. Consult an eminent domain attorney
before signing new leases or amending current leases.
- Information Provided to the Government Can Be Used Against You. Documents and information given during conversations with the government and its appraisers can be used against you in the eminent domain case
Actions taken by property owners before the government files an eminent domain case can
affect the outcome for better or worse. If your property is ultimately taken, you are
entitled to just compensation. Contact Ryan & Ryan Law if you have questions concerning
eminent domain or your property rights in Illinois.