The Eminent Domain Procedure Act of SC

Created and passed in 1987, the South Carolina Eminent Domain Procedure Act has several key features.

1) If there is a conflict between the SC rules of civil procedure and the SC Eminent Domain Procedure Act the latter prevails.

2) If the owner of the land refuses the offer of compensation during the 30 days they are given to consider the offer, the condemnor is able to file a condemnation notice with the clerk of court, paying a filing fee equal to that of a summons or complaint, and then deposit the funds that were offered to the owner. At this time the clerk of court can order the dispossession of the owner from the property and the funds are given to the owner at the time of dispossession whether or not they accepted the offer or not.

3) To prevent the above action the owner can elect to enter into a trial stage which they can demand and must take place no more than 60 days after the date of service on the affidavit reporting that they have rejected the offer of compensation.

4) Or, a three member appraisal panel can be appointed, with the owner appointing one member, to view the facts and circumstances of the action and determine if the offer was in fact a fair value. The decision of the panel can be appealed to a trial for further deliberation.

Friday, April 25, 2014

16 steps of an Eminent Domain Action in SC.

In SC, once an owner has been contacted by the government that it intends to take their property, there are 16 steps that are useful as a guide to what the process entails.
1) A Right to Survey- After reasonable notice, the owner must allow the government to enter the property to undertake a survey.
2) Government Appraisal, then Offer- The government, in SC, must use the appraisal to form their offer to the owner.
3) Mortgage Penalties and Taxes- The government must reimburse or pay the cost of prepayment penalties for mortgages. The government is given credit against taxes due during the year in which it acquires the landowner's property.
4) The Eminent Domain Action- In SC, the government is entitled to use the action to obtain private land for public use but what is public use? It doesn't mean just road building. It could be for many reasons and even for the military to utilize. This can be contested either by trial or by appraisal panel.
5) Filing of a Condemnation Notice- If a settlement between the government and the owner can't be found, the government can file a condemnation notice and deposit the offered funds that were rejected with the clerk of court. At this point the clerk orders the written notice to the owner that their land is condemned. The court is then permitted to take possession of the land.
6) Landowner's Right to Withdraw Deposit- In SC the owner can withdraw either 50% or 100% of the available funds depending on the source of the funds. Once they do this they no longer have a right to contest the taking of the property. The withdraw of funds is acceptance of the offer and the taking.
7) Right to Jury Trial and Priority- Unless both the government and the owner reject a jury trial, the eminent domain trial is conducted before a judge and jury. After 60 days have passed either side may request that the trial be given priority over all other civil trials because the eminent domain action should see a trail date within the first 60 days after the affidavit is delivered stating that the offer of compensation is rejected.
8) Retention of Experts- Normally, the key issue in a case is the compensation amount being offered. The panel will be comprised of an appraiser for the government and one for the owner, possibly a third appraisal expert, and various other experts such as: engineers, surveyors, land use planners, and others depending on the circumstances.
9) Just Compensation- In SC, the eminent domain case focus is on the amount of compensation. The owner is entitled to compensation for the land taken and for any damage to remaining land due to the taking.
10) Discovery- Prior to a trial, both parties will engage in discovery. Similar to any other civil action, the parties will need to undertake interrogatories (written questions), requests to produce documents, and depositions.
11) Actions Challenging the Right to Condemn- Only in certain circumstances, a landowner may challenge the government's right to condemn, usually through a separate proceeding. It must be commenced within 30 days after service of the condemnation notice on the landowner. All eminent domain proceedings are then stayed until the challenge to the right to condemn is resolved.
12) Settlement- In addition to negotiations that occur prior to the filing of the condemnation notice, the parties can settle the issue at any time. (before, during, or during appeal of the trial.)
13) Eminent Domain Trial- The amount of compensation will be decided during this trial in the event that no settlement has been reached up to this point. In SC, the first witness in this trial is always the government witness who testifies about the land being taken and the purpose behind the taking. Then the owner presents their case. 14)Interest- The government must pay interest at the rate of 8% per annum (by the year) on the amount of just compensation awarded to the landowner. The interest begins when the notice is filed and continues until the date of the final verdict.
15) Attorney Fees, Costs, and Litigation Expenses- If a landowner prevails against the government in a condemnation case, in addition to compensation the landowner may recover its reasonable litigation expenses. These include attorney fees, expert fees, deposition costs, and other related trial expenses. Compensation would be for the highest valuation of the property that was done.
16) Post Trial and Appeal If either side is not satisfied with the results, they can file post-trial motions, then they can appeal. Such appeals normally go to the SC Court of Appeals, with the possibility of a petition for writ of certiorari to the SC Supreme Court thereafter. Normally condemnation trials last no more than one year. Appeals however can go on for years before being resolved.
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Leases and Eminent Domain/Condemnation

Pg. 474 of Essentials of Practical Real Estate Law- A lease may or may not have a clause as to what will happen if a section of the leased premises are taken through eminent domain action or government condemnation. Typically the landlord or tenant can exercise a right to terminate the lease do to this type of action. And if termination is not selected the rent will be amended to reflect the smaller size premises being rented.
Pg. 71 of Essentials of Practical Real Estate Law- Federal, State, and Local Governments have the right to take private property for public use. In other words the ownership of real property in the United States is subject to a perpetual repurchase option of the government. The land being taken could be on behalf of local government agencies, county and city, state and federal agencies, or in some cases privately owned public utility companies. The owner of the land is entitled to fair market value compensation for the land taken but what is fair market value for it is subject to many disparaging views and opinions. Depending on the various appraisals, who is doing them, and the vested interest that party may have in coming up with their value, the actual market value and what is considered fair are not always going to be the same number.
Pg. 255 of Essentials of Practical Real Estate Law- An exclusion on title insurance is that it is understood ownership in private property is subject not only to government control but also government taking of the property via eminent domain or regulations under police powers. (I.E. RICO actions.)
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