SC Condemnation Attorney - Charleston, SC Eminent Domain Lawyer
SC condemnation attorney in Charleston, explains how owners can challenge eminent domain or condemnation in South Carolina and the laws that regulate the process.
South Carolina Condemnation Lawyers
The lawyers at Walker Gressette Freeman & Linton, LLC regularly represent parties in condemnation cases. These cases involve the taking of property and litigation over the proper amount of just compensation that must be paid to the landowner as a result of damage to or the loss of his property. You may also hear people refer to these cases as “eminent domain” or “takings” cases.
The purpose of this page is to provide general background information about how the condemnation process works and to explain how the lawyers at Walker Gressette Freeman & Linton, LLC assist parties in litigation of these cases. See http://www.wgfllaw.com/disclaimer.
The Government’s Power of Eminent Domain
“Public Purpose” Required for Condemnation
The Condemnation Process and Condemnation
Lawsuits Just Compensation
How Our Team of Condemnation Lawyers Helps Landowners
The Government’s Power of Eminent Domain:
In certain circumstances, public entities have the power to take property. That power is called Eminent Domain. However, the Fifth Amendment to the United States Constitution says “private property [shall not] be taken for public use, without just compensation.” U.S. Const., Amend. IV. The South Carolina Constitution similarly provides that “. . . private property shall not be taken . . . for public use without just compensation being first made therefore.” S.C. Const., Art. I, § 13. That means if a citizen’s property is to be taken using the power of eminent Domain, then the landowner must be justly compensated for the landowner’s damages as a result of the taking. The legal process that resolves the questions of just compensation for a taking is referred to as “an eminent domain case” or as “a condemnation case” or even as a “a takings case”.
Property can only be acquired through condemnation if the intended use of the property qualifies as a public purpose. The construction of roads, bridges, highways, railways, utilities, public buildings, and public parks are some of the common public purposes for which land is condemned. When notified of condemnation case, a landowner can challenge the right of the condemning authority to take the property. Specifically, a landowner may file a lawsuit, separate and apart from the condemnation proceedings, within thirty days after the condemning authority serves the landowner with notice of the condemnation proceedings. Filing of such an action stays the condemnation proceedings until the issue of the public purpose is resolved by a judge. In 2005, the United States Supreme Court decided Kelo v. City of New London, 545 U.S. 469 (2005), a widely published case involving the limits of what type of action constitutes a “public purpose.” While Kelo was an important, notable case, the most often litigated issue these cases the amount of just compensation, rather than the government’s right to condemn.
The Condemnation Process and Condemnation Lawsuits:
The condemnation process in South Carolina proceeds according to the requirements of the South Carolina Eminent Domain Procedure Act. That Act is found in the South Carolina Code beginning with S.C. Code § 28-2-10. Following are the basic steps that must occur in the process.
Before a property can be condemned, “the condemnor shall cause the property to be appraised to determine the amount that would constitute just compensation for its taking and shall make the appraisal available to the landowner.” S.C. Code §28-2-70(A). The condemnor must then make “reasonable and diligent” efforts to negotiate a fair purchase agreement for the land. S.C. Code §28-2-70(B). Even before a formal condemnation case is filed, the condemner has the authority to enter the landowner’s property for “the purpose of making a survey, determining the location of proposed improvements, or making an appraisal.” S.C. Code §28-2-70(C).
After obtaining its appraisal but before filing a formal condemnation case, the condemnor must send a Condemnation Notice to the landowner with the determined compensation amount; this letter constitutes an offer to pay that amount or “a tender” of that amount. S.C. Code § 28-2-220 (B). Upon receiving the Condemnation Notice, “[t]he landowner has thirty days . . . to give the condemnor written notice either that he [or she] rejects the amount tendered, or that he [or she] accepts the amount tendered. . .” and “[a] failure to respond to the tender constitutes a rejection.” S.C. Code § 28-2-220(C). “If the landowner rejects or does not accept the amount tendered as just compensation within the thirty-day period, then the condemnor may file the Condemnation Notice with the clerk of court and deposit with the clerk the amount of just compensation stated in the notice.” S.C. Code § 28-2-230(A). Filing of the Condemnation Notice begins a court case over the taking of the property.
As the court case proceeds, the parties will often engage in discovery, similar to any other civil action. Discvoery is the process whereby the parties exchange information about their positions in the case, usually by written questions or “interrogatories.” After the case has been pending for sixty days, either of the parties can demand the case be set for trial and “the action must be given precedence over other civil cases for trial.” S.C. Code § 28-2-310(c). The condemnor and the landowner are entitled to a jury trial if they wish. S.C. Code § 28-2-310 (B). The trial in a condemnation case focuses on “just compensation” which is the amount the condemnor must pay the landowner in order to fully compensate the landowner for having taken the landowner’s property.
Typically, the government and the landowner will both have a real estate appraiser testify as to the value of the taking (ie, the “just compensation” that is due). There may also be other types of expert witnesses such as engineers, surveyors, arborists, hydrologists, or land use planners. “In determining just compensation, only the value of the property to be taken, any diminution in the value of the landowner's remaining property, and any benefits” to the land as a result of the particular public project.” S.C. Code § 8-2-370.
Just compensation includes “only value of property taken, damage to remaining land, and benefits to landowner.” S.C. Code § 8-2-370. In direct condemnation cases the condemnor may take any entire parcel (a total take) or only portion of a parcel (a partial take). A total take occurs when the government condemns the fee simple absolute to a property. In the case of a total take, the damages will consist of the value of the whole parcel of land.
In the case of a partial take the damages will be the value of the portion of land actually taken as well as any damage to the remaining parcel (as reduced by any benefit to the remaining parcel). One common example is a road widening where part of a landowner’s property is taken to widen a roadway and the landowner is left with the portion of their property that was not necessary for the roadway project. Often times, the damages to this remainder parcel are often the primary issue.
In South Carolina, courts have allowed the recovery of a wide variety of special damages to the remaining parcel. Specifically, those damages “would include any damage or any decrease in actual value of the remainder of the landowner's property which are the direct and proximate consequence of the acquisition of the right of way. In other words, as a general rule, special damages include all injuries or damages which cause a diminution in the value of the remaining property.” S. Carolina State Highway Dep't v. Touchberry, 248 S.C. 1, 5, 148 S.E.2d 747, 748 (1966). In addition to these damages and just compensation, a landowner may also be entitled to recover attorneys’ fees and even the payment of interest. S.C. § 28-2-420 (A) and S.C. Code § 28-2-510(B)(1)-(2).
How Our Team of Condemnation Lawyers Helps Landowners:
Our team handles condemnation cases for landowners on a contingency fee basis, meaning there is no fee unless you collect more than the government offered prior to your hiring Walker Gressette Freeman & Linton, LLC. We will also handle these cases on an hourly basis if the client prefers. We have successfully handled a variety of condemnation cases, including road widenings, roadway construction and realignments, and airport runway expansions. By way of example, our team successfully represented a landowner in a condemnation action brought by the South Carolina Department of Transportation (SCDOT) to acquire, through its power of eminent domain, land in Charleston County. Our lawyers successfully negotiated a settlement payment of $2,400,000from the SCDOT. In another recent case, the SCDOT was taking property for the widening of U.S. Highway 278 in Beaufort County. That case went to trial and during trial the SCDOT argued to the jury that our client was only entitled to $8,600. Through the use of expert witnesses we were able to explain to the jury that the amount should be significantly higher. Instead of $8,600, the jury returned a verdict of $450,000 of “just compensation” for the landowner.
Contact Walker Gressette Freeman & Linton, LLC today at 843-727-2200. You may also directly contact any of the lawyers listed below.
John Linton, Jr.