David H. Melasky

2777 Allen Parkway, Suite 1000, Houston, Texas 77019 | Tel. (713) 965-9984 Fax (888) 204-8252 | email: info@melaskylaw.com

New Rights for Landowners When Faced with Condemnation

      In 2010, the legislature enacted sweeping changes to the Texas eminent domain procedures. (Senate Bill 18, 82nd Leg. (R.S.) effective September 1, 2011.) This new law not only gives the landowner much greater rights in the condemnation process, but extends these new rights to landowners whose property is being acquired by private businesses such as utilities and pipelines. Now more than ever the landowners faced with condemnation can be in a position to demand that compensation be accurately assessed. A summary of the new statutory provisions, and their implications for landowners faced with condemnation, follows.

The landowner must be furnished all appraisals

      Any governmental or business seeking to acquire property by eminent domain must furnish the landowner with any appraisal of the property within the past ten years.

The condemning authority must make a “bona fide” offer before an eminent domain proceeding can begin

      The legislature has made this requirement much more stringent than the earlier versions of this law. An initial offer is required to be followed by a final offer not  less than thirty (30) days later. The final offer must be at least equal to the value determined by a certified appraiser. The landowner has fourteen (14) days to respond to the final offer. Thus, at a minimum, the landowner has not less than forty-four (44) days to assess his options and to plan an effective response. If the business or government fails to follow this step, the case may be placed in a suspended status until the bona fide offer process is complied with and the landowner may receive attorneys fees for this failure.

Even Private Businesses must now provide landowners information related to the planned condemnation

      This is a new and very significant right that should allow landowners better information to assess the impact of a condemnation when only part of their property is being condemned. Not only will a landowner better be able to negotiate before a suit is filed, but the landowner will now be in a position to determine what is needed to effectively protect his or her rights if the condemnation process is necessary. A condemning agency which fails to provide this information may have to pay any attorneys fees the landowner incurs due to this failure.

To utilize the new rights, a landowner must act decisively and effectively to protect his or her rights in the eminent domain process

      The new rights afforded landowners by the Legislature create a situation where the landowner can present his case with much the same detail as the case presented by the government or business condemning the land. Now, before even an offer is made, a landowner whose property is to be taken can force the condemning entity to provide information about the project. In cases where only a portion of the property is to be taken, the landowner can determine the effect of the planned acquisitions on his remaining property as soon as his property has been identified for possible condemnation. This gives the landowner a great chance to knowledgeably negotiate and, if necessary, prepare for a hearing.

      With these changes in the condemnation procedures, early involvement of an attorney has become extremely important for effective results. Early use of legal counsel can assist in obtaining the appropriate information for the landowner to use in negotiations and to prepare for a hearing if necessary. With the chang,es in the law the special commissioners hearing taken on an even greater importance since a potentially unfavorable commissioner can be excluded. Effective participation in this hearing, with adequate preparation by the landowner, is important for several reasons - it may result in a successful award; it gives the landowner a chance to see how the condemning authority will challenge their position; and it shows that the landowner will be a formidable opponent who will have to be reckoned with.

                                                                                                                © 2013 David Melasky