State Provisions on the Recovery of Litigation Expenses in Eminent Domain Proceedings Prepared by Frank Munyan Division of Legislative Services August 24, 1999 For the Eminent Domain Study Committee Summary of Laws of States |
The laws of states with respect to their provisions for the payment of litigation expenses
incurred by condemnees do not fall into clear categories. The following analysis groups
statutes on the basis of which they address disputes about the amount of compensation due
for a taking or damage to property through the exercise of the power of eminent domain. A
summary of the laws of the states is attached as an appendix.
A. Condemnor is required to pay litigation expenses in all cases or when litigation results
in greater compensation to the condemnee.
Alaska: If the court is 10% more than the allowance or "appears necessary to achieve a just
and adequate compensation."
Florida: Condemnor is required to pay reasonable appraisal fees, and to pay attorney's fees
based solely on the benefit achieved for the client. The benefit means the margin between
the final judgment and the last offer made before the attorney was retained, or if none was
made the first offer after the attorney was attained. The amount of the fee shall be 33% of the
benefit amount up to $250,000; 25% of the benefit $250,000 and $1,000,000; and 20% of the
benefit over $1,000,000. The Courts must reduce the fees owed by the client by the amount
awarded by the court.
Iowa: If the award of the commissioners exceeds 110% of the final offer.
Michigan: If the amount awarded exceeds the offer, the court shall order reimbursement of
the reasonable attorney's fees, not to exceed one third of the excess, and the amount will be
set by the court using eight factors. Expert witness fees are allowed, with one expert per
element of damages unless the court decides otherwise.
Montana: The State Constitution requires payment of expenses when the owner prevails;
fees are awarded on an hourly basis when the owner prevails by receiving an award in
excess of the final offer of the condemnor.
Oklahoma: If the jury's award exceeds the commissioners award by 10%.
Oregon: If the trial court's award is greater than the highest offer by the condemnor or if the
first offer is made in bad faith.
South Dakota: If the award is at least $700 and is at least 20% greater than the final offer,
the owner is entitled to reasonable attorney fees and not more than two expert witnesses.
Washington: If the condemnor fails to make an offer, or judgment is 10% more than the
offer, but only if an owner stipulates to an order of immediate possession upon condemnor's
deposit of funds into court to pay the amount offered.
Wisconsin: If the judgment exceeds the condemnor's offer by 15% and is at least $700.
B. Courts have the discretion, but are not required, to award to the condemnee its
litigation expenses in eminent domain proceedings:
California: If the court finds that the offer of the plaintiff was unreasonable and the demand of
the defendant was unreasonable in light of the evidence admitted and compensation
awarded, litigation expenses will be awarded.
Delaware: If the award us closer to the valuation evidence provided by the defendant than
the plaintiff's offer. Court may reduce or deny the amount if the plaintiff's position was
substantially justified or special circumstances make the award unjust. Amount cannot
exceed amount of compensation. If the award is lower than the plaintiff's offer, the plaintiff
may apply for an order for the defendant to pay its litigation expenses.
Idaho: Expenses may be awarded; one factor is whether the verdict exceeds a timely offer by
10%.
Kansas: Court may allow fees if the jury verdict is greater than the court appointed
appraiser's award.
Louisiana: Attorney's fees may be awarded if the award is greater than the condemnor's
highest offer; costs (including appraiser's fees) shall, under Constitution, be paid by the
condemnor.
Nebraska: Court may at its discretion require payment of fees (including two experts) if, (1)
judgment is 15% greater than the appraiser's award, (2) condemnor appeals and the final
judgment is at least 85% of the award; or (3) both the appeal and the judgment are greater
than the appraiser's award. If the condemnee appeals and the judgment is less, the court
may award costs (but not attorneys or expert fees) to the condemnor.
New York: Litigation expenses may be awarded by the court where it is deemed necessary
to achieve just and adequate compensation where the award is substantially in excess of the
condemnor's proof.
North Dakota: At the Discretion of the court, may award costs and/or attorney's fees.
C. Condemnees are allowed to recover fees of expert witnesses, including appraisers,
but are not authorized to recover attorney fees:
Colorado: Requires payment of expert witness fees, including appraiser fees.
Connecticut: Appraisal fee reimbursement is optional if the award exceeds last offer.
Minnesota: Appraisal fees are paid at the option of the court.
New Hampshire: Court has discretion on expert witness fees.
North Carolina: Court has discretion for appraisers and engineers where the testify as
witnesses or produce materials introduced as evidence.
incurred by condemnees do not fall into clear categories. The following analysis groups
statutes on the basis of which they address disputes about the amount of compensation due
for a taking or damage to property through the exercise of the power of eminent domain. A
summary of the laws of the states is attached as an appendix.
A. Condemnor is required to pay litigation expenses in all cases or when litigation results
in greater compensation to the condemnee.
Alaska: If the court is 10% more than the allowance or "appears necessary to achieve a just
and adequate compensation."
Florida: Condemnor is required to pay reasonable appraisal fees, and to pay attorney's fees
based solely on the benefit achieved for the client. The benefit means the margin between
the final judgment and the last offer made before the attorney was retained, or if none was
made the first offer after the attorney was attained. The amount of the fee shall be 33% of the
benefit amount up to $250,000; 25% of the benefit $250,000 and $1,000,000; and 20% of the
benefit over $1,000,000. The Courts must reduce the fees owed by the client by the amount
awarded by the court.
Iowa: If the award of the commissioners exceeds 110% of the final offer.
Michigan: If the amount awarded exceeds the offer, the court shall order reimbursement of
the reasonable attorney's fees, not to exceed one third of the excess, and the amount will be
set by the court using eight factors. Expert witness fees are allowed, with one expert per
element of damages unless the court decides otherwise.
Montana: The State Constitution requires payment of expenses when the owner prevails;
fees are awarded on an hourly basis when the owner prevails by receiving an award in
excess of the final offer of the condemnor.
Oklahoma: If the jury's award exceeds the commissioners award by 10%.
Oregon: If the trial court's award is greater than the highest offer by the condemnor or if the
first offer is made in bad faith.
South Dakota: If the award is at least $700 and is at least 20% greater than the final offer,
the owner is entitled to reasonable attorney fees and not more than two expert witnesses.
Washington: If the condemnor fails to make an offer, or judgment is 10% more than the
offer, but only if an owner stipulates to an order of immediate possession upon condemnor's
deposit of funds into court to pay the amount offered.
Wisconsin: If the judgment exceeds the condemnor's offer by 15% and is at least $700.
B. Courts have the discretion, but are not required, to award to the condemnee its
litigation expenses in eminent domain proceedings:
California: If the court finds that the offer of the plaintiff was unreasonable and the demand of
the defendant was unreasonable in light of the evidence admitted and compensation
awarded, litigation expenses will be awarded.
Delaware: If the award us closer to the valuation evidence provided by the defendant than
the plaintiff's offer. Court may reduce or deny the amount if the plaintiff's position was
substantially justified or special circumstances make the award unjust. Amount cannot
exceed amount of compensation. If the award is lower than the plaintiff's offer, the plaintiff
may apply for an order for the defendant to pay its litigation expenses.
Idaho: Expenses may be awarded; one factor is whether the verdict exceeds a timely offer by
10%.
Kansas: Court may allow fees if the jury verdict is greater than the court appointed
appraiser's award.
Louisiana: Attorney's fees may be awarded if the award is greater than the condemnor's
highest offer; costs (including appraiser's fees) shall, under Constitution, be paid by the
condemnor.
Nebraska: Court may at its discretion require payment of fees (including two experts) if, (1)
judgment is 15% greater than the appraiser's award, (2) condemnor appeals and the final
judgment is at least 85% of the award; or (3) both the appeal and the judgment are greater
than the appraiser's award. If the condemnee appeals and the judgment is less, the court
may award costs (but not attorneys or expert fees) to the condemnor.
New York: Litigation expenses may be awarded by the court where it is deemed necessary
to achieve just and adequate compensation where the award is substantially in excess of the
condemnor's proof.
North Dakota: At the Discretion of the court, may award costs and/or attorney's fees.
C. Condemnees are allowed to recover fees of expert witnesses, including appraisers,
but are not authorized to recover attorney fees:
Colorado: Requires payment of expert witness fees, including appraiser fees.
Connecticut: Appraisal fee reimbursement is optional if the award exceeds last offer.
Minnesota: Appraisal fees are paid at the option of the court.
New Hampshire: Court has discretion on expert witness fees.
North Carolina: Court has discretion for appraisers and engineers where the testify as
witnesses or produce materials introduced as evidence.
 | |  | |  | |  | |  | |  | |  |