Special to the Washington Post
The Purple Line is on track to become a reality in the next few years and will provide a new means for commuters to travel between Montgomery and Prince George’s counties. According to the state’s latest studies, as many as 500 properties may be taken, in whole or in part, by eminent domain. Most only will involve small slivers.
But what if your property is in the path of the Purple Line? Do you have any legal say in the matter and how will you be compensated?
The government is able to acquire properties through eminent domain, the process by which the government may take the property of its citizens to serve “the common good.” Property owners in its path are entitled by law to receive full, fair and just compensation. There are some simple points regarding condemnation of property that are often overlooked or misunderstood. A few are explained below:
Takings of slivers or small portions of property
Many Purple Line takings will involve only slivers or small portions of private property. In a case involving a partial taking of their property, owners are entitled under Maryland law, to be paid the value of the land taken, plus damages caused to the remainder of the property not taken. If part of your backyard is taken, you should be entitled to receive the value of your barbecue pit, pool or pond, etc., as well as the value that any of these contribute to the remainder of your property. Also, if the state’s taking results in an “uneconomic remnant,” (a remaining small part of land that has no economic value), the state must take the entire property and the owner may be entitled to have the entire property paid for.
Proximity damage (damage to nearby properties)
While a property owner is entitled to damages to the remainder when only a portion of the property is taken, the state is very reluctant to pay any damages to property owners who are nearby, but where no part of their property is taken. The state does not consider the sound of trolleys (or light rail vehicles) running through the night as damage. There are two exceptions. First, if any property is uniquely damaged in ways other than the public in general, this may create the right to compensation. Second, if the property taken by the state is subject to an easement or a covenant (as in the case of homeowners’ associations) there may be a right to compensation.
Do you have a mortgage?
Most of us own our property subject to a mortgage or a deed of trust. Under the terms of these legal documents, if there is a condemnation, the bank is entitled to be paid all of the money up to the balance due on the mortgage. Typically, the bank is entitled to all compensation paid for the “value” of the property taken. If the settlement or award also includes damages to the remaining property, the homeowner might have an argument to be entitled to these damages if worked out with the bank in advance. If you as a homeowner want any part of the condemnation payment to come to you rather than your lender, you or your attorney should negotiate an agreement with the lender early in the process. The lender ultimately must approve the sale of the property, which today can be a challenge. Lenders must be involved in the process from the start, hopefully as a cooperative partner.
Arguments not to make
Under Maryland law, courts typically are not willing to review the issue of public purpose or necessity for the taking, the precise boundaries of the targeted land, or the amount of the land being taken. If you as a property owner want to challenge any of these points, you must allege and prove bad faith or illegality on the part of the taking agency — which is a very difficult thing to do. A great deal of time, money and effort can be wasted trying to disprove the public purpose or necessity of a given project.
Tenants’ rights are set forth in the lease
Whenever rental property is the subject of a condemnation case, the rights between landlords and tenants almost certainly will be governed by the lease. Tenants’ compensation, if any, will be controlled by the lease and usually will be limited to fixtures that cannot be relocated, as well as possible moving expenses.
You are entitled to interest, but not attorney’s fees
Under the Maryland Constitution, owners are entitled to 6 percent interest on the condemnation value from the date of taking to the final settlement. The state will not normally pay a homeowner’s legal fees. The only exceptions are if a condemnation is filed and then withdrawn, or if the taking results in a “uneconomic remnant” and the subsequent taking of the entire property.
“Quick take” condemnation
A limited number of government agencies have been given the right of “quick take,” where the agency can obtain an appraisal, deposit the amount of the appraised value with the court, and immediately take the property. The Purple Line is a prime example of a quick take project. While this option sounds arbitrary, it does leave the owner with certain benefits. The owners may withdraw the funds deposited with the court and still contest the value of the property if the owners feel the funds do not constitute fair and just compensation. Even in a quick take, property owners have the legal right to prove the value of their property and may pursue fair compensation by negotiation, mediation or court action.
Relocation expenses and negotiating the market value of your home
The state may be responsible for payment of relocation expenses if there is a taking of occupied property. The definition of “fair market value” (what a seller will accept, and what a buyer will pay) is constantly evolving and depends on many factors. The ability of property owners to obtain full and just compensation almost always depends on the expertise of a professional appraiser and the negotiating skills of a condemnation attorney. Many people accept the financial settlement that the condemning agency offers because they believe it is a final offer and they are required to accept it. As with any property sale, there is always room for evaluation and negotiation. The financial rewards can be very significant.
This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.
Related: Graphic of the Purple Line
Harry Lerch is a land use attorney at the Bethesda law firm Lerch, Early & Brewer. He specializes in condemnation litigation and has handled cases for government agencies and private property owners over the last 40 years, including cases by Montgomery County, the State of Maryland and WMATA. He wrote this guideline for Purple Line homeowners for the Post. Lerch does not represent any homeowners who will be affected by the Purple Line, though he has received inquiries from some. He has not advised any of them on their rights.