Governments and certain quasi-governmental entities (like utilities) have the ability to take private property for public use on payment of just compensation. This authority is called the power of eminent domain. Exercise of the power occurs through a court-supervised process called condemnation. In this discussion, the real estate lawyers at Sloan Law Firm explain the basics of eminent domain and the condemnation process.
Chapter 26 of the Kansas statutes govern eminent domain in the state. Article 5 of the Chapter establishes the procedures to be followed in all eminent domain cases.
Under K.S.A. § 26-101, the power of eminent domain extends to corporations and partnerships holding a certificate of convenience from the state. Kansas law allows the following entities to condemn private property for public use:
Regardless of which entity exercises the power of eminent domain, the statutory process in Chapter 26, Article 5 must be followed.
The eminent domain statute provides that condemnation proceedings for private property occur in the district court of the county where the property is located. If the property is in more than one county, the proceedings may occur in any of the counties where the property is located.
The first step in the process is the filing of a petition, verified by affidavit, which states the reason for taking the property and the basis of the authority for the taking. The petition also includes a detailed description of the property and an explanation of the rights to be acquired. All owners, lienholders of record, and persons in possession must be identified.
A landowner is entitled to receive fair or just compensation for the interest taken. After the petition is filed, the taking entity has nine days to notify all parties of an initial hearing. All parties named in the petition must be mailed a copy of the document at least seven days in advance.
At the initial hearing, the district court judge examines the petition to confirm the petitioner’s right to exercise eminent domain, which the court usually affirms. After confirming the condemnor’s authority, the judge appoints three appraisers to determine compensation and damages for the affected parties. Two of the appraisers must have experience valuing real estate.
The appraisers view the land. They are then required to hold a hearing to receive oral or written testimony from interested parties, who must receive at least 10 days of advance notice of the hearing. The hearing is an administrative proceeding, not a judicial process. Following the hearing, the appraisers determine and issue a statement of the award amount of fair compensation for the property taken.
The eminent domain law includes detailed requirements for determining the value of the land taken.
The condemning entity must deliver payment to the clerk of the district court within 30 days of the award. Payment includes the appraisers’ award, plus fees and court costs. The clerk then disburses the payment to the landowner and any other parties in interest.
Any party dissatisfied with the appraisers’ award may file an appeal within the 30-day deadline for submission of payment. An appealing part becomes the plaintiff in a standard civil action in district court.
When there is an appeal due to a dispute over the amount of the appraisers’ award, the district court determines the amount of the award or final judgment. The court holds a de novo (new) trial by jury to hear the appeal and award damages.
An adverse decision on a district court appeal may be appealed to the Kansas Court of Appeals or be removed to the Kansas Supreme Court.
Eminent domain proceedings do not provide a forum for challenging the condemnor’s authority. A landowner wishing to challenge condemnation must litigate the issues in a separate civil action. The action is often in the form of a lawsuit for an injunction to stop the condemnation.
If the taking entity has legal authority to exercise eminent domain, the only legal basis that can be used to stop condemnation is a claim that the proposed taking does not represent a public purpose or necessity.
Kansas statutes and case law on eminent domain and condemnation are extremely complex. If you learn that your property is being condemned, you should contact an attorney who knows the laws and process as soon as possible. Getting an attorney involved early on is the best way to ensure that you get the full compensation you deserve for the property that is being condemned.
In many cases, you may find out that your property is under consideration for condemnation before a petition is filed in court. It’s not required by the law, but often the condemning entity contacts the property owner and attempts to negotiate just compensation before filing a petition, in order to avoid the time and costs of a court action. You should get an attorney involved immediately if that happens to you. Otherwise, you may compromise your legal rights or give up benefits that could have been recovered.
The statutes include complicated provisions on how appraisers should determine compensation. The factors are detailed and have a lot of room for interpretation. Having a skillful attorney who knows how compensation should be determined, even at the early negotiation stages, can make a significant difference in how much compensation you ultimately receive.
If you own property affected by eminent domain and condemnation, our real estate attorneys at Sloan Law Firm are here to help. We’ve been serving clients throughout Kansas and the Midwest since 1930. We invite you to contact us by calling (785) 357-6311 or using our online contact form.