Fighting The Power To Take Your Home

Dana Berliner, senior attorney at the Institute for Justice, said that many property owners are lulled by seemingly sympathetic government officials into believing they will be treated generously.

"Often the city will say, 'Don't worry, we'll take care of you,' and that isn't true," Berliner said. "If you think the local government will take care of you through the goodness of its heart, that's not a good idea."

Not everyone has such a negative experience. Brandt Mensh, managing partner of Let's Connect Wireless, a business in Rockville, was distressed when he learned the townhouse where his firm operated was being taken by the city for the Town Center redevelopment project. But the townhouses were "old and falling apart," and the city paid compensation and relocation costs. He declined to say how much he was paid.

Property owners can boost the purchase price they receive by producing evidence of comparable sales, providing information on valuable home improvements, and hiring an appraiser to give expert testimony about valuation. A lawyer who is experienced in eminent domain questions and has valuable local political connections can help to ensure a better price as well.

"When you get into the process, it can be expensive," said real estate lawyer Steven VanGrack, chairman of the Maryland Real Estate Commission. "Part of the problem is the government has government lawyers, city attorneys, state or county attorneys to pursue this process. The landowner has to pay to hire an attorney. The cost to the government doesn't include legal counsel but the cost to the individual homeowner can be enormous."

One way to keep legal costs down is to find other people in the same situation and agree to share the costs. One-tenth of a legal bill is cheaper than 100 percent of a legal bill.

Another big uncertainty property owners face is how long the process will take. The condemnation timeline varies dramatically from situation to situation, depending on local law, and the power wielded by the individual agency. It can happen within months, or take years to be completed.

The process is often quicker in Maryland, Virginia and the District than in some other states, Thompson said, because "quick take" laws in the three jurisdictions allow the process to happen more quickly than in places where property owners have more time to appeal.

The Maryland State Highway Administration, for example, can take raw land via quick-take within about 90 days after initiation of negotiations. When a case involves a home, the quick-take process takes about three months to a year. Without the right to quick-take, or when the government decides not to use it, the process can take a year or more.

If the price appears about right, however, and the seller is agreeable, the deal can be struck quickly. If the owner says no, there is a public hearing where people can testify. In Maryland, for example, the government agency adopts what is called a "resolution of necessity," which sets forth the reason for the condemnation.

Then the government agency sues in state court. It is also required to post the purchase money it has set aside at the price it intends to pay. Both the property owner and the government present testimony. A jury hears the suit. Two separate issues are in question: whether the property is indeed suitable for the purpose the government has said, and what the price should be. If the property owners lose, they can appeal.

An increasing number, such as Kelo and her eight co-plaintiffs in New London, are fighting longer.

"People are challenging eminent domain now," Berliner said. "As they realize they can and do win, you will see more legal challenges."