If you’ve read the several other free articles on this website, you’re beginning to understand that Pennsylvania Eminent Domain law is nothing short of complex. We wish we could explain every nuance and detail more fully in our articles, but it’s simply not possible. Even properties that seem to have similar characteristics may be affected by different issues to be argued, and different rights to be protected. To that end, this brief article attempts to summarize the answers to the most frequent questions that our office receives from landowners facing the threat of Eminent Domain.
1. Who Pays My Attorney Fees or the Costs of Litigation?
The Pennsylvania Eminent Domain Code provides certain compensation (in addition to “just compensation”) that may be available to condemnees, and the forms of compensation are generally described here:
- “Professional fees” incurred by the condemnee, which can include attorney fees, appraisal services and engineering fees, up to a total amount of four thousand ($4,000) dollars; (NOTE: See our No Up-Front Fee Policy at the end of this article.)
- Fees and expenses concerning the transfer of title to the property, such as deed recording fees, transfer taxes, penalty costs for prepayment of a mortgage, pro rata reimbursement of real property taxes paid, pro rata portion of water and sewer charges paid;
- In certain cases, increased financing costs when caused by increased interest and other debt service costs in connection with financing a replacement property for a displaced person or business;
- Pre-condemnation losses if there is a reduction in rental income before the “taking”. The condemnee must prove that the reduction was substantially due to general knowledge that the condemnation was imminent, and not attributable to physical deterioration of the property that was within the reasonable control of the property owner.
It is worth noting that in certain cases, the $4,000 limit on “professional fees” does
not apply. This can occur if a landowner (condemnee) is successful with Preliminary Objections resulting in the termination of the condemnation. It can also occur in cases known as a "de facto” taking, also known as an "inverse condemnation." (When a condemnor makes use of a property without filing a declaration of taking). In these situations, the Eminent Domain Code provides that the condemnor must pay all reasonable and necessary engineering fees, other costs and expenses actually incurred because the condemnation filing was defeated.
2. What If They Are Taking Only Part of My Property?
When a condemning agency is not “taking” an entire property but rather only a portion of it, this is known as a “partial taking”. A landowner can receive “just compensation” for the “partial” property taken, along with damages to the remaining lands that may result from the “partial” taking. In these cases, the “before and after rule” applies. This rule defines “just compensation” as the difference between the value of the property before and after the taking. Further, 26 Pa. C.S.A. § 706(a) of the Eminent Domain Code explains that when “ . . . determining the fair market value of the remaining property after a partial taking, consideration shall be given to the use which the property condemned is to be put and the damages or benefits specially affecting the remaining property due to its proximity to the improvements for which the property was taken."
3. Is the Government Allowed to Take Possession of My Land Before Paying the Final Compensation?
Yes they can. When a government agency takes your property (presuming the “take” is otherwise valid) they are required to pay "Estimated Just Compensation” (EJC). The EJC is paid without prejudice to the rights of either party, and allows them to proceed to a final determination of the amount of just compensation. Any payments made are considered “pro tanto” – meaning towards the total of the just compensation amount finally determined.
The Court will mold and final verdict to deduct the EJC previously paid by the condemnor. In no event can the condemnee be forced to pay back the EJC, even if the amount of just compensation - as finally determined - is less than the compensation paid.
4. What Does Your Office Charge? (Our No Up-Front Fee Policy)
Our fee structure is quite simple – and based only on results. Pay no fees until the case is concluded, based on a percentage of any settlement OVER the amount the condemning authority first offered. (Usually set forth the in Estimated Just Compensation – EJC). After a free consultation to evaluate your case, the amount you were offered and the issues to be faced, we’ll memorialize the percentage in writing so that you fully understand the services and fees.
5. But I Have So Many Other Questions!
We understand. That’s why we offer a free consultation, to review any maps
or drawings that you may have received, any communications, proposed agreements and writings from the condemning authority, and more. This is likely a troubling and confusing time for you, and most people in your situation have the same questions (and many more), such as:
- I don't understand these maps – what property are they taking?
- When can they come onto my property?
- Can I stop them from the “take” altogether?
- What if this condemnation damages my other property?
- Their project may cause flooding to other parts of my land. What then?
- Should I accept their offer? Do I have to?
- Do I have to accept the offer?
It’s never too soon to speak with us, but it can be too late. Even if you have been informally contacted by anyone discussing an acquisition of your land, contact us. If you have received a written notice, Estimate of Just Compensation (EJC) or an actual Condemnation notice, you must act now. We welcome you to read the several other articles about Eminent Domain available free on this website. Better yet, call us for a free consultation at 1-800-755-0245 or send an instant message through our website: http://www.puzaklaw.com. We look forward to helping you!
IMPORTANT: Every case is unique in its facts and circumstances. This article is for general information purposes and is not intended as legal advice for any particular case. We recommend consultation with a lawyer of your choice who can perform a thorough analysis of your situation and the particular rights and remedies that may apply.
©David J. Puzak, Puzak Law Offices, LLC
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