| Eminent Domain Reforms Needed to Protect Virginia Property Owners |
| Top Priority: The General Assembly failed to pass Kelo reform this year so it must be done in 2007 |
Protection from the US Supreme Court's Kelo Ruling The Kelo v. City of New
London decision represents a severe threat to the security of all home, business, and
property owners in the country. Not only does it allow a whole category of condemnations
that were previously in legal doubt, it actually encourages the replacement of lower-
income residents and businesses with richer homeowners and fancier businesses.
The vast majority of Americans understand what is at stake, even if many so-called
experts do not.” Dana Berliner, attorney for the Institute for Justice
London decision represents a severe threat to the security of all home, business, and
property owners in the country. Not only does it allow a whole category of condemnations
that were previously in legal doubt, it actually encourages the replacement of lower-
income residents and businesses with richer homeowners and fancier businesses.
The vast majority of Americans understand what is at stake, even if many so-called
experts do not.” Dana Berliner, attorney for the Institute for Justice
| Kelo vs City of New London The U. S. Supreme Court Chooses Tax Revenues over Home Owners Link to Supreme Court's Decision |
| Major Weaknesses of Virginia's Eminent Domain Law and Solutions Found in the Laws of other States |
- The property owner facing a condemnor who is either unaware of the value of their
property or unwilling to pay a fair price will not receive "just compensation" even by
challenging the condemnor in court and winning an award of "fair market value."
This is because attorney fees and other miscellaneous litigation expenses will take up
to 50% of any benefit they may have gained by going to court.
In seventeen states the law either requires or includes an option, which allows the
court to order the condemnor to reimburse reasonable litigation expenses, including
the payment of attorney fees, if it is determined that the condemnor's offer was not fair.
Click here for: A Summary of the Statutes of the 17 States that include "property
owner litigation reimbursement." This information was provided in a Division of
Legislative Services report prepared for the Eminent Domain Study Committee.
- The property owner facing condemnation must pay for any appraisal he finds
necessary to determine the fairness of the condemnor's initial offer. This is a non-
compensable expense, ranging from $500 to many thousands of dollars, that must be
incurred before the property owner has adequate information to even determine the
fairness of the offer, much less negotiate with an experienced condemning authority.
There are states that allow the property owner to hire an appraiser and submit the
reasonable appraisal costs to the condemnor for payment.
- The business owner facing condemnation will not be reimbursed for business
losses. The Virginia Supreme Court has held that "Ordinarily, ..........loss of good will,
loss of profits, and difficulty relocating, is a loss personal to the owner, or to the
business conducted on the land by the owner, not attributable to the land itself." State
Hwy. & Transp. Comm'r. v. Lanier Farms, Inc. There are 9 states which allow
recovery for lost business profits or business interruption. It is interesting to note that
"business good will or going concern value is recognized as a valuable asset for
purposes of taxation, divorce and business torts." Oddly, it is only in eminent domain
that these loses to a business owner are recognized.
- The property owner often endures 2 to 3 years in the limbo of a condemnation
dispute. To expedite the process, when mediation fails, there are states where the
courts give priority to hearing condemnation cases.
- The condemnor is not required to include a separate statement of itemized,
severance or consequential damages to the remaining property in his offer of
compensation. There are states that require that the condemnor's offer include a
separate itemization of severance and/or consequential damages.
- The residential owners have no option but to remain next to a powerline, pipeline,
- highway, etc. if only part of their property is taken. There are states that provide the
property owner the option of requiring the condemnor to purchase the entire property,
if only part is taken. When this option is chosen, the condemnor is required to pay for a
full perimeter survey.
- The condemnor is not required to consider damages to the appearance of the
property remaining or damage to the view, in determining the amount to be offered in
- compensation. There are states which require consideration of the value of these
features and others, in determining the amount to be paid in compensation.
| Advisor on Legislative Reform Joseph T. Waldo, Attorney Specializing in Eminent Domain 301 Freemason St. Norfolk, Virginia 32501 Phone: 757-622-5812 |
| The Virginia Property Rights Coalition Dedicated to Reform of Virginia's Eminent Domain Laws |
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"The moment the idea is admitted into society that property is not as sacred
as the laws of God, and there is not a force of law and public justice to protect
it, anarchy and tyranny commence." John Adams
as the laws of God, and there is not a force of law and public justice to protect
it, anarchy and tyranny commence." John Adams