As a Seattle eminent domain attorney and Washington condemnation attorney I deal with a lot of people who are having their property taken by eminent domain. It is never an easy process, you have to fight tooth and nail for every penny, and it is always rewarding to see the light at the end of the tunnel, to see the landowner get the money they deserve, and to resolve a dispute leaving my clients happy.
But in doing all of this it is important to remember that the sale of property is never an exact science, that in many cases neither side is going to get everything they want or think they need. Just like with the purchase of an entire house or building or car or anything else, there is no precise price, and in many cases the offers of the parties set the high and low points, with the final agreed to price somewhere in the middle. It is important for landowners having their Washington property taken through eminent domain to understand they are not going to get what is asked for in the initial counteroffer (condemning authorities for the most part recognize they are almost always going to have to come up in price for just compensation). What they are doing is setting a ceiling, an absolute height in just compensation, that might be reached in the perfect scenario.
Many times we, as eminent domain attorneys, need to remember to temper client expectations, to remind them that although our theories and arguments sound great in discussion, when the rubber hits the road some will either be inadmissible or will be seen as an attempt to get money that is not reasonable. In the end, it is likely the landowners will have to come down from their initial counteroffer and the government will have to come up, until the parties reach a place they are both comfortable with. So, remember to take that into account when negotiating with the condemning authority and when strategizing with your client. It can make a big difference in everyone walking away feeling satisfied.
If your property is being taken by the government in Washington State by eminent domain, whether it be Seattle, Renton, Spokane, Kennewick, Olympia, Tacoma, Federal Way, Kent, Everett, Woodinville, Redmond, Kirkland, Yakima, Bellevue, Auburn, Puyallup, Vancouver, Mukilteo, Edmonds, West Seattle, or Pullman, you need someone working on your side.
Showing posts with label Reasons WA Property Owners Need Eminent Domain Help. Show all posts
Showing posts with label Reasons WA Property Owners Need Eminent Domain Help. Show all posts
Tuesday
What to do if Your Property is Being Taken by Eminent Domain
If you have found your way here, you have probably received some correspondence from your city, county, or state government, the Washington Department of Transportation, or some other governmental entity that your property is or will need to be acquired by eminent domain. You are probably pretty scared right now. That is okay. It can be a bit of scary process, particularly since it has probably never happened to you before. But while you are feeling scared it is also time to get proactive to either: (1) stop the eminent domain process all together; or (2) get the most money (I say the correct money) for your property. Below I'll give you some steps to follow so that you can make sure you are accorded your full Constitutional rights.
As I mentioned above, there are two separate problems to consider when facing Washington state eminent domain. First, is whether your process can be taken by eminent domain. The second is what the value of your property is worth - its fair market value. To need to determine the fair market value of your property so that just compensation can be paid to you, the government first needs to show that the property they are taking is for a public purpose or use.
Although you may have recently heard that the United States Supreme Court has weakened the requirements for finding a public purpose (the Kelo case), once that case was handed down states rushed to redefine public purpose under the state law. As such, Washington's eminent domain law's are much stricter, overall, than those of the federal government. This means if you feel like your land is not being taken for a true public purpose (often government's will try to take land under the guise of "economic development," wherein once they have your property they will sell it or lease it to a private developer who will construct condos or a mall on it) you may actually have a chance of having the court rule that the taking is not for a public purpose.
If you feel like your land is not being taken for a public purpose you should find a qualified eminent domain lawyer to help you.
Once you've determined that the taking is for a public purpose (or are satisfied that it is), then the real fun begins. If you are not familiar with the eminent domain process, now would be a great time to learn about it. Basically the government appraises your property, presents you with an offer of just compensation (and relocation benefits if they are taking your house or your business) and you can either accept their offer or negotiate for more money.
This is where a qualified professional is needed, and at least for the first phase of the process, at no out of pocket cost to you at all. When you talk to the acquisition agents (the government employees hired to negotiate the sale of your property) they will suggest that you hire your own appraiser to valuate your property. DO NOT HIRE AN APPRAISER TO VALUATE YOUR PROPERTY AT THIS STAGE OF THE PROCEEDINGS. It is not to your benefit but to their benefit. At this point you have all of the leverage because you have the ability (with help) to examine their appraisal and determine its weaknesses. The money in eminent domain for you as a property owner is NOT made by getting your own appraiser but by showing WSDOT or Sound Transit or the City of Seattle how their appraiser messed up and you deserve more money.
Another thing about hiring an appraiser is that they are expensive, and unless they are experienced in eminent domain, they will not know how to valuate your property correctly. And once you do have an appraiser, the condemning agency will use its knowledge and experience to pick apart your appraisal, trying to bring down the value of your property. That is exactly what you do not want to do.
So, what is there to do? There are a number of eminent domain professionals out there who can help you evaluate the condemning authorities offer of just compensation for your property. And the best part is, this initial evaluation is paid for by the condemning authority! State statute requires any entity taking your property by eminent domain to pay up to $750 dollars for you to get their offer evaluated. This is great because it generally costs about that much for an offer to be evaluated.
What goes into an evaluation of an offer of just compensation of eminent domain? A lot actually. It starts with a thorough review of the condemning authorities appraisal (if you can get it - great general rule here - if your property is being taken by eminent domain always ask for a copy of their appraisal), including how they have characterized your property (commercial, residential, agricultural), what they relied on to make that determination, how much property they are taking, what your property was like before the taking, what it will be like after the taking, the appraisal method utilized (comparable sales, cost, or income capitalization) and any other factors they took into account. Generally this will give an overview of the condemning authorities determination of the value of your property. After the appraisal is reviewed, a discussion with you, the landowner, is in order. During that discussion we'll talk about all of the things in the appraisal, with a focus on the use of the property, the best use of the property, and any sales that have occurred in the area of property you think is similar to your property. A visit to the property is also usually very helpful. After that, it is important to find sales and information that are favorable to our view of how the property should be valued.
After all of the information is gathered and analyzed (usually it takes about two weeks), the next step is to respond to the condemning authority in writing, discussing any shortcomings in their appraisal and additional information we have. At that point, the condemners usually take a couple of weeks to evaluate and respond. Traditionally at that point a meeting occurs to try to settle on a price for the property. If an agreement cannot be reached after negotiation, then a trial is held to determine the just compensation you get (this is the point where you get an appraiser).
So, as you can tell, it is not necessarily a fun experience, but it can be empowering in the sense that you can have a say in what you are paid for your property. And you deserve that power. If your property is being taken by eminent domain in the state of Washington, don't wait expecting it to go away. Call someone that can help today, and begin preparing your side of the property valuation story.
As I mentioned above, there are two separate problems to consider when facing Washington state eminent domain. First, is whether your process can be taken by eminent domain. The second is what the value of your property is worth - its fair market value. To need to determine the fair market value of your property so that just compensation can be paid to you, the government first needs to show that the property they are taking is for a public purpose or use.
Although you may have recently heard that the United States Supreme Court has weakened the requirements for finding a public purpose (the Kelo case), once that case was handed down states rushed to redefine public purpose under the state law. As such, Washington's eminent domain law's are much stricter, overall, than those of the federal government. This means if you feel like your land is not being taken for a true public purpose (often government's will try to take land under the guise of "economic development," wherein once they have your property they will sell it or lease it to a private developer who will construct condos or a mall on it) you may actually have a chance of having the court rule that the taking is not for a public purpose.
If you feel like your land is not being taken for a public purpose you should find a qualified eminent domain lawyer to help you.
Once you've determined that the taking is for a public purpose (or are satisfied that it is), then the real fun begins. If you are not familiar with the eminent domain process, now would be a great time to learn about it. Basically the government appraises your property, presents you with an offer of just compensation (and relocation benefits if they are taking your house or your business) and you can either accept their offer or negotiate for more money.
This is where a qualified professional is needed, and at least for the first phase of the process, at no out of pocket cost to you at all. When you talk to the acquisition agents (the government employees hired to negotiate the sale of your property) they will suggest that you hire your own appraiser to valuate your property. DO NOT HIRE AN APPRAISER TO VALUATE YOUR PROPERTY AT THIS STAGE OF THE PROCEEDINGS. It is not to your benefit but to their benefit. At this point you have all of the leverage because you have the ability (with help) to examine their appraisal and determine its weaknesses. The money in eminent domain for you as a property owner is NOT made by getting your own appraiser but by showing WSDOT or Sound Transit or the City of Seattle how their appraiser messed up and you deserve more money.
Another thing about hiring an appraiser is that they are expensive, and unless they are experienced in eminent domain, they will not know how to valuate your property correctly. And once you do have an appraiser, the condemning agency will use its knowledge and experience to pick apart your appraisal, trying to bring down the value of your property. That is exactly what you do not want to do.
So, what is there to do? There are a number of eminent domain professionals out there who can help you evaluate the condemning authorities offer of just compensation for your property. And the best part is, this initial evaluation is paid for by the condemning authority! State statute requires any entity taking your property by eminent domain to pay up to $750 dollars for you to get their offer evaluated. This is great because it generally costs about that much for an offer to be evaluated.
What goes into an evaluation of an offer of just compensation of eminent domain? A lot actually. It starts with a thorough review of the condemning authorities appraisal (if you can get it - great general rule here - if your property is being taken by eminent domain always ask for a copy of their appraisal), including how they have characterized your property (commercial, residential, agricultural), what they relied on to make that determination, how much property they are taking, what your property was like before the taking, what it will be like after the taking, the appraisal method utilized (comparable sales, cost, or income capitalization) and any other factors they took into account. Generally this will give an overview of the condemning authorities determination of the value of your property. After the appraisal is reviewed, a discussion with you, the landowner, is in order. During that discussion we'll talk about all of the things in the appraisal, with a focus on the use of the property, the best use of the property, and any sales that have occurred in the area of property you think is similar to your property. A visit to the property is also usually very helpful. After that, it is important to find sales and information that are favorable to our view of how the property should be valued.
After all of the information is gathered and analyzed (usually it takes about two weeks), the next step is to respond to the condemning authority in writing, discussing any shortcomings in their appraisal and additional information we have. At that point, the condemners usually take a couple of weeks to evaluate and respond. Traditionally at that point a meeting occurs to try to settle on a price for the property. If an agreement cannot be reached after negotiation, then a trial is held to determine the just compensation you get (this is the point where you get an appraiser).
So, as you can tell, it is not necessarily a fun experience, but it can be empowering in the sense that you can have a say in what you are paid for your property. And you deserve that power. If your property is being taken by eminent domain in the state of Washington, don't wait expecting it to go away. Call someone that can help today, and begin preparing your side of the property valuation story.
Thursday
Washington State Eminent Domain | Severance Damages Explained
In last few posts I've discussed several different issues regarding Washington State eminent domain and how landowners can get more money for their property taken by eminent domain. The key thing to remember is that condemning authorities have someone on their side working for them, and you should too. Eminent domain is complicated, and you need a trusted ally.
Let me give you an example of how complicated the Washington State eminent domain process can be (and how much help having someone working for you can pay off). There was a family, let's call them the Smiths, who where having their property taken by eminent domain, in, for purposes of example only, Seattle. Now, this property didn't sit in Seattle proper, but right on the outskirts. The property consisted of 40 acres, rectangular in shape, and was used for agricultural purposes. The west property line adjoined the property line of the current highway 99 just as it left Seattle (remember this is hypothetical).
At some point the city of Seattle decided it needed to re-align highway 99 so that it no longer had any stop lights or stop signs. The only way to get on and off after this realignment was finished would be with on and off ramps - more like an expressway than a state highway. To do this Seattle went around and through a neighborhood where the design engineers decided it best fit. This ended up putting the new highway right through the middle of the Smith's property (called a severance in eminent domain speak), leaving 12 acres on one side and 14 on the other.
Although the Smith's were devastated that the new highway alignment went right through their property and that their Seattle land would be taken by eminent domain if they didn't settle, they were confident the city would make them a good offer for their property, including the loss in value to the property they would have left, since once the new highway was built it would be very hard to continue farming the land (remember there is no way to get across the highway from one part of the property to the other).
Normally appraisers don't have to account for the loss in value to any remaining property, much less one that has been cut in half. Traditionally they are tasked with determining the fair market value of the property to be taken. This means figuring out what a willing buyer and a willing seller in an open and competitive market would pay for the property. But in this case it is more complicated because of the severance.
In my experience, the way the property should be valued is to look at what the entire property would have been worth before the eminent domain taking, and then look at what the property remaining after the eminent domain taking, subtract the two, and learn your amount of just compensation (called a before and after analysis). But all too often appraisers will approach determining the value of the property after the taking by assuming the property owner would sell of the property to two different owners - one on one side of the new road and one on the other. And that may well be the case, but the appraiser is supposed to assume the property would be sold to one person. If you think about it this makes the property remaining much more valuable than if the Smiths had to sell their severed property to one owner (remember there is no way to get across the road from one property to another).
In my hypothetical, this is exactly what happened to the Smiths. The appraiser overvalued the remaining property, extremely lowering Seattle's offer of just compensation (the appraiser found ZERO damages to the remainder property). When the Smiths saw the offer from the city, they knew it was far too low. They knew the property they had left would be worthless. So they did what any prudent landowner should - they got help with their eminent domain taking. And what was the result? A substantially increased settlement of just compensation, with their property valued the way it was supposed to have been at the very beginning.
Let me give you an example of how complicated the Washington State eminent domain process can be (and how much help having someone working for you can pay off). There was a family, let's call them the Smiths, who where having their property taken by eminent domain, in, for purposes of example only, Seattle. Now, this property didn't sit in Seattle proper, but right on the outskirts. The property consisted of 40 acres, rectangular in shape, and was used for agricultural purposes. The west property line adjoined the property line of the current highway 99 just as it left Seattle (remember this is hypothetical).
At some point the city of Seattle decided it needed to re-align highway 99 so that it no longer had any stop lights or stop signs. The only way to get on and off after this realignment was finished would be with on and off ramps - more like an expressway than a state highway. To do this Seattle went around and through a neighborhood where the design engineers decided it best fit. This ended up putting the new highway right through the middle of the Smith's property (called a severance in eminent domain speak), leaving 12 acres on one side and 14 on the other.
Although the Smith's were devastated that the new highway alignment went right through their property and that their Seattle land would be taken by eminent domain if they didn't settle, they were confident the city would make them a good offer for their property, including the loss in value to the property they would have left, since once the new highway was built it would be very hard to continue farming the land (remember there is no way to get across the highway from one part of the property to the other).
Normally appraisers don't have to account for the loss in value to any remaining property, much less one that has been cut in half. Traditionally they are tasked with determining the fair market value of the property to be taken. This means figuring out what a willing buyer and a willing seller in an open and competitive market would pay for the property. But in this case it is more complicated because of the severance.
In my experience, the way the property should be valued is to look at what the entire property would have been worth before the eminent domain taking, and then look at what the property remaining after the eminent domain taking, subtract the two, and learn your amount of just compensation (called a before and after analysis). But all too often appraisers will approach determining the value of the property after the taking by assuming the property owner would sell of the property to two different owners - one on one side of the new road and one on the other. And that may well be the case, but the appraiser is supposed to assume the property would be sold to one person. If you think about it this makes the property remaining much more valuable than if the Smiths had to sell their severed property to one owner (remember there is no way to get across the road from one property to another).
In my hypothetical, this is exactly what happened to the Smiths. The appraiser overvalued the remaining property, extremely lowering Seattle's offer of just compensation (the appraiser found ZERO damages to the remainder property). When the Smiths saw the offer from the city, they knew it was far too low. They knew the property they had left would be worthless. So they did what any prudent landowner should - they got help with their eminent domain taking. And what was the result? A substantially increased settlement of just compensation, with their property valued the way it was supposed to have been at the very beginning.
Friday
Washington State Eminent Domain Example | Federal Way Stormwater Retention Facility
I was glancing through the paper a week or so ago and saw a story that reminded me of why I love helping Washington State property owners negotiate eminent domain takings. Reported in the Federal Way Mirror, it appears as though the officials of Federal Way, Washington want to build a regional stormwater facility, presumably to capture the runoff from storm water that has been created as a result of all of the development in the area.
Because the city knows it needs this facility and will be building it in the relatively near future, Federal Way has determined it is necessary to use its power of eminent domain to get the property needed for the facility. This means that at least five property owners are facing the loss of some of their property in exchange for just compensation.
As you can see from the article, however, things have not been going as smoothly as one might have hoped. Although some of the property owners don't feel Federal Way needs all of the land it is asking for (an issue completely separate from just compensation and best handled by a Washington eminent domain attorney) a major problem is the amount of just compensation being offered for the property.
The story notes that when Federal Way initially contacted one of the landowners and presented the offer of just compensation the offer was for a measly $2,500. This was supposed to be compensation for the property Federal Way was taking as well as any damages the remaining property as a result of the take. After the property owner balked at the offer it was magically raised to $16,400! And that was without any help.
With a little more work, however, they may have been able to get much more. Generally, it is not enough for the property owner in this instance to simply tell Federal Way that his remaining property is going to be worth less after they take what they need. He needs to show them. That often includes finding comparable sales, reading and evaluating zoning ordinances, and combining all of the information gathered into a cohesive, persuasive presentation to the city.
Because the city knows it needs this facility and will be building it in the relatively near future, Federal Way has determined it is necessary to use its power of eminent domain to get the property needed for the facility. This means that at least five property owners are facing the loss of some of their property in exchange for just compensation.
As you can see from the article, however, things have not been going as smoothly as one might have hoped. Although some of the property owners don't feel Federal Way needs all of the land it is asking for (an issue completely separate from just compensation and best handled by a Washington eminent domain attorney) a major problem is the amount of just compensation being offered for the property.
The story notes that when Federal Way initially contacted one of the landowners and presented the offer of just compensation the offer was for a measly $2,500. This was supposed to be compensation for the property Federal Way was taking as well as any damages the remaining property as a result of the take. After the property owner balked at the offer it was magically raised to $16,400! And that was without any help.
With a little more work, however, they may have been able to get much more. Generally, it is not enough for the property owner in this instance to simply tell Federal Way that his remaining property is going to be worth less after they take what they need. He needs to show them. That often includes finding comparable sales, reading and evaluating zoning ordinances, and combining all of the information gathered into a cohesive, persuasive presentation to the city.
Wednesday
WA State Eminent Domain | Just Compensation | Offer and Appraisal
The Condemning Authority's Appraisal is Not Always Correct
One of the first things I learned was that although the appraiser's for the condemning authority try hard, they often missed critical elements that greatly undervalued property owners' land. This resulted in very low offers of just compensation and a lot of wiggle room for landowners that had experienced help. Washington eminent domain land valuation is very different from valuing regular property for several reasons: first, there are some rules that are specific only to eminent domain takes; second, sometimes there is property left over after the government has taken what they need (sometimes in multiple parts), and the way an appraiser would normally value this is not the same as they are required to do under eminent domain rules; and finally, the appraisers are often asked to complete their valuations very quickly, forcing them to make decisions they just aren't prepared to make.Because government appraisers make mistakes, it is important to hire someone who can help you evaluate the condemning authorities offer and appraisal to make sure they've done a good job. And the great thing is, this initial review doesn't cost you a dime.
The Government is Often Willing to Negotiate the Price of Your Condemned Property up Significantly - If a Good Argument is Presented
Contrary to popular belief, the government actually wants to pay you what your property is worth - just compensation is a term they actually try to meet (for the most part). The government also knows that sometimes they make mistakes. They also know that generally it is much safer and much less expensive to ask you what you are asking than risk going through an eminent domain trial. This benefits landowners greatly - again, if you have good people working on your behalf.Let me give you an example. Let's say the Sound Transit Authority is condemning your property for the light rail project that just passed. They need your property because it is in the footprint of the actual tracks of the light rail so there is no question it is for public purposes. Sound Transit has notified you they want to take your property, have had an appraisal done, and have presented you with an offer. The first thing you will notice is that Sound Transit has people working on their behalf to acquire your property - acquisition agents. This is all the more reason to have someone on your side. Now back to the example. Because they only took a strip of your property (referred to as a partial take) they have done a before and after analysis of your Seattle property.
A good Washington state eminent domain adviser will immediately look to the damages that have been assigned to the remainder of your property to make sure they were adequately accounted for. And assuming there were some problems with this would discuss the impacts to your property and how that might affect it if you would try to sell it in the future. Next you would bring up any discrepancy you thought you found to the acquisition agent, setting out in concrete terms why you believe the offer is low. If the justification is good, they will often come up and meet your request.
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