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South Carolina law requires governments to attempt to negotiate with landowners prior to filing a condemnation action. Typically, agencies will hire companies referred to as Right of Way Acquisition Companies and their agents will contact you. These agents are called Right of Way Agents or ROW Agents. It is incredibly important you understand this phase of the condemnation process when making any decisions or even talking to the ROW Agent.
First, ROW agents are not required to have any special licenses or training in real estate. They often handle multiple projects which include hundreds of individual tracts of land. They typically make an offer based on an appraisal they procured or a cost estimate they prepared. They have very little room to stray from those numbers when negotiating your case. As a landowner, you need to remember that the government is just like any buyer. It wants to buy your property as cheaply as possible. When the government makes you an offer, it will tell you that it represents fair market value and may show you an appraisal. As stated above, you need to understand that appraisals are very subjective and can vary widely. The government’s appraisal may be a low which is most often the case .
The amount of money presented is called the initial offer and you will be entitled to that amount regardless of whether you reject the offer. Whether to accept or reject this offer needs to be discusses with and attorney so you can maximize your recovery.
I have rejected the government’s initial offer in 99.9 % of the cases I handled and have always been more successful obtaining a higher award for the client. As a landowner, you should not agree to this initial offer unless you have a unique situation. Regardless, you should still discuss the matter with an attorney.
If you and the government cannot agree on a price, the government can proceed with eminent domain which means it will file a condemnation action with the clerk of court. The filing of these initial pleadings starts the legal process against you. This process gives the government legal access and possession of your property but also give you control over your case. This lawsuit does not affect your credit rating or allege that you have done anything wrong. DO NOT BE INTIMIDATED BY A THREAT OF EMINENT DOMAIN. ROW agents whether intentional or not will often imply a threat or negative consequence from turning a matter over to condemnation. They will not explain to you that the filing of the action against you gives you more control over your case and provides the tools for a greater recovery.
Once the government initiates the eminent domain process, you will need to retain an eminent domain lawyer if you haven’t done so already. Most lawyers will offer to help, but it is very important you hire one who specializes in eminent domain law. Your attorney not only needs to know the law, but also needs to know what experts to consult and hire, how to prepare that expert and what evidence and witnesses to gather which will be essential to maximizing your recovery. See the Why hire an attorney page
Once the action is filed, you have much more control over the case. You can accept the initial offer and spend the money as you see fit or let it sit with the clerk of court and collect interest. You also need to discuss the statutory interest rates with your attorney and come up with a plan to maximize your award.
In addition, the filing of the action allows you collect all the documents and evidence to help build your case. The government can no longer withhold evidence from you or select what it wants to provide. This missing data could be anything from noise studies, environmental studies to traffic data, etc which would not be contained in the initial appraisal but could demonstrate a substantial impact to your property. The filing also allows you to attack the government appraisal and questions its witnesses under oath. This process is essential to maximizing your award.
The filing of the action also gives you control over when you can call the case. The law allows you to seek priority which means you can have the case tried within 90 days after filing. This can give you a huge advantage over the government and needs to be discussed with an experienced attorney. The quicker you hire an attorney, the better position you will be when the action is filed.
Should we not be able to agree on a settlement during the litigation process, we would enter the third phase which is the trial phase. Cases typically get to this phase due to a fundamental disagreement on a particular approach or the application of a particular methodology. Although most cases settle during the litigation phase, you need to feel comfortable that your attorney possesses the necessary tools and experience to present a solid case to a jury. You also need an attorney who can advise you and make recommendations on whether to proceed with a bench trial or jury trial. Mr. Murphy has successfully prosecuted and defended numerous eminent domain cases before both judges and juries. He possesses the experience to provide all the information necessary for you to make the most beneficial decision. I strongly encourage you call me to discuss your case and make a decision on how to proceed.