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How Current Laws Deny Our 5th Amendment Rights

We need better laws to protect the 5th amendment rights of individuals.  Anyone who has ever had property seized by eminent domain knows, that contrary to belief, rarely are owners offered “just compensation” for their property being taken.

You think they are fair! Please visit this website to see a case in point  which is near and dear to my own heart!

The organization seizing the property either uses it’s own appraisers or contracts to have the required appraisal performed.  When they pay for the appraisal; I am sure you can guess which side the appraisals tend to favor.  The individual is then made an offer often if not usually far below true “market value” and minimal if any restitution for damages.  The individual must then, hire their own appraisal to show the inequity of the original one, hire an attorney and expert witnesses to present to the courts; where they must resort and attempt to get what they should have been offered in the first place.  By the time the case is settled the property owner usually winds up with about 50% of the gain over the original unfair offer.  While still worth the effort, the property owner looses the 50% costs so they never in fact can receive just compensation for their loss.

Several much needed pieces of legislation have been authored to address some of the violation of individual's rights.  I commend those legislators who have taken steps in the right direction.  The fact that this occurs has been recognized in Virginia; and beginning July 1 the law allows that individuals are to be compensated for expenses, other than attorney fees, if the court’s award is 30% or more greater than the original offer.  Many (18) other states already have similar laws some of which which also allow for attorney fees to be reimbursed as well. Since the attorney fees are the largest portion of the 50% cost of a commission trial they need to be included here in Virginia as well.  Remember the taking party knows that the individual will never get full just compensation in the courts after expenses; so they know they can, and do, low ball their offer. The new laws take a step in the right direction but stop short of providing meaningful relief.

In Virginia the Department of Transportation (VDOT) is the leading “taking” party under eminent domain due to their many road projects. They spend millions of dollars per year in litigating eminent domain cases using contract attorneys. It would be interesting to see a study of the amount of public funds spent litigating these cases vs. the amount of additional funds awarded by the courts to individuals.  Perhaps these funds spent on contract attorneys, would be better spent fairly compensating individuals rather than fighting them; it may even save public funds.

The only way to stop the unfairness of eminent domain is to have laws which require an individual to be reimbursed for all expenses and damages when it is determined that the original offer was not “fair market value” or they failed to properly consider damages resulting from the action.  I personally believe that the 30% margin in the new law is too large.  I believe an appraisal done at arms length should be within 10% of the “market value” (as other states have recognized) and therefore any award greater than 10% should require full reimbursement of expenses, including attorney fees. This would be plenty fair to the taking party; since the individual would still have to gamble on the trial commission awarding something greater than 10% over the offer or they would not receive reimbursement for their out of pocket costs to litigate.  It would however give incentive to the taking party to truly offer "just compensation” in the first place; or face having to pay costs in addition to the increase in value awarded by the court.  It would put both parties on a more level playing field during negotiations which would probably lead to fewer litigations.

I urge you to support sponsorship of legislation requiring that property owners be reimbursed for all legal expenses, including attorney fees, where it is shown that the "taking" party failed to make an offer which would justly compensate the owner for the property being taken and damages to any remainder.



Last Edited: 2008-05-14 08:18 PM -0500