Washington Eminent Domain Procedure | Part III | Immediate Possession

In my last post I discussed the initial stages of the eminent domain process after negotiations have reached a standstill (or the condemning authority needs to move forward because of project timetables), including notice of eminent domain and the petition for eminent domain. In the following paragraphs I'll give you the rest of the statutory rules.

Order for Immediate Possession of Your Property by the State, county, or city

In some instances, mostly because of project time pressures, the condemning authority will need your property as quickly as possible. The Legislature has recognized this and allows for condemning authorities to ask the court for an Order of Immediate Possession.

To get an order of immediate possession a couple of things must happen: (1) an order of necessity must have been granted; (2) the order of necessity shall not have been challenged by the landowner; (3) the condemning authority shall require immediate possession; (4) the Attorney General has stipulated (agreed) with landowners in accordance with RCW 8.04.092 and 8.04.094 (discussed below); (5) filed with the court a certificate that the condemning authority requires immediate possession and use of the land, which also states the amount of money to be offered and that the offer constitutes a continuing offer; (6) a copy of the certificate is filed with the office of financial management, who cuts a check for the amount offered to the attorney generals office; and (7) the money offered to take the property is paid into the court. RCW 8.04.090.

Once all of this happens the court must enter an order granting the state immediate possession and use of the property and ordering the state to pay the full amount of any final judgment of compensation and damages that is awarded for the taking.

What does this all mean? It means the condemning authority has the ability to take immediate possession of your property. What it does not mean is you are bound by their last offer. Contesting the amount they have offered for just compensation for the taking is still allowed. And whatever you are awarded, if it is over the initial offer, will be paid by the condemning authority. If immediate possession is sought by the state, to make sure your rights are correctly represented, you should contact an expert in Seattle Washington eminent domain law.

If Payment for Eminent Domain Taking is Withdrawn a Trial for Damages May Still Occur

The court considers the amount paid into the court as just compensation an adequate amount for the taking of property by eminent domain if no trial is demanded by the landowner. RCW 8.04.092. If the award is challenged, however, the landowner may take the amount paid into the court out of the court's possession with no penalty. If, after a trial, the amount owed to the landowner for the property taken and damages to the remainder is more than that paid by the condemning authority, they will have to immediately pay the difference. If, however, the award is lower than that paid into the court by the condemning authority, the landowner must pay back to the state the difference.

What does this statute mean for you as a landowner? First, it is okay to take the money paid into the court out of court for your property. From the court's point of view, until a jury or judge decides otherwise, that amount is just compensation for the taking of your property. Second, and more importantly, if a judge or jury decide an amount different than that paid into the court, the party that has paid too much or taken too much must make up the difference.

Landowner Must Demand A Trial within Sixty Days of the Order of Immediate Possession

If you do contest the award offered by the condemning authority and paid into court, then you must demand a trial for the purposes of assessing just compensation within sixty days of the date the order of immediate possession and use is filed. After the demand is made, the trial must be set within one year of the date the demand is made, unless good cause for delay can be shown. If no demand for trial is made in the time allotted, the court shall enter a decree of appropriation for the amount paid into court. The decree shall be final and nonappealable. RCW 8.04.094

What does this mean? If you are not happy with the award the condemning authority has offered and paid into the court, TIME IS OF THE ESSENCE. You must contact a property attorney experienced in eminent domain immediately to preserve your rights. If the demand for trial is not filed within sixty days you will lose the ability to challenge the amount the condemning authority thinks your property is worth. This is very important!

This wraps up takings for States, counties, and cities in Washington State when immediate possession is wanted by the condemning authority. Next up I'll discuss what happens when a property has more than one owner.

Washington Eminent Domain Procedure | Part II

In the last post, I outlined the Washington eminent domain process from the point at which the government learns that they need your property to the point where negotiations break down and eminent domain proceedings are required. Remember, as soon as you find out your property will be taken, it is important to get a good Washington eminent domain lawyer. They can save you time and potentially increase the amount of money you receive from the government.

This post will cover the process when eminent domain proceedings are inevitable. At that time most of what the government must do is controlled by statute (written rules).

Washington Eminent Domain Rules Broken Down by State, County, City, School Districts, and Corporations

The Revised Code of Washington is the compilation of all permanent laws now in force. Title 8 of Revised Code of Washington is titled "Eminent Domain." As would be expected Title 8 holds most, if not all, of the Washington eminent domain procedural rules.

When you first get to Title 8 of the Washington Revised Code, you will see that the rules are broken down depending on which governmental entity is taking your property (or private entity if a corporation). Despite the rules being broken up, eminent domain proceedings by Washington State, a Washington County, or a Washington City, are pretty much uniform. If you want to know the difference, please contact a good washington eminent domain lawyer.

Washington Eminent Domain Procedure for States, Cities, and Counties

Eminent Domain Petition

The first step in actually condemning property in Washington is filing the petition for appropriation. The petition (lawyer speak for lawsuit) must be filed in the county where the land is located. It must also reasonably describe the property, identify all those with an interest in the land (tenants included) that can be known with reasonable certainty, why the property is needed, and requesting that a jury be impaneled to determine the amount of compensation to be awarded for taking the property. RCW 8.04.010

The petition is usually a pretty straightforward document doing as the instructions require. Notice that the sole question to be determined by the jury (or court depending on which is agreed to by the parties) is the amount of compensation. Whether or not the land can be taken by eminent domain is an entirely different question, and will be addressed at another time.

Notice that Petition Filed and Service on Landowners

Once the petition for eminent domain is filed it must be served on all the parties listed, and an attempt must be made to notify anyone that might have an interest in the property but might not be able to be found by the government. Usually the notice will have a copy of the petition and a date where the petition will first be addressed by the court. At this point in time if you are serious about challenging the governments determination of just compensation you should hire an experienced eminent domain attorney. RCW 8.04.020

Hearing to Determine Public Use

As I mentioned earlier, the government can only take your property for public use. Once the petition is filed the court will have a hearing to ensure both (1) that notice has been properly served on all parties having any interest in the property; and (2) that the government's use is for a public purpose.

If public use is questioned, but the court finds the taking is for public use, then you as a landowner must file an appeal within five days of the entry of the order with the appellant court for a separate hearing. Examples of this, both successful and unsuccessful will be discussed at a later date. RCW 8.04.070

Order Directing Determination of Damages and offsetting Benefits

Assuming the need of the property is for public use, at the conclusion of the hearing, the Judge will enter an order directing determination of damages and offsetting benefits. This order must set a trial date within 30 days of the date of the order if a jury is available, or 60 days if no jury is immediately available.

The determination to be made is just compensation for the property owners. What this means how much value was lost because of the taking. Although this too will be discussed in more detail at a later date, valuation of just compensation in eminent domain proceedings really takes into account three things: (1) the fair market value of the property acquired; (2) any damages to property remaining (if any); and (3) any special and direct benefit accruing to the remaining property as a result of the improvement. Taking all three of these things into account results in a determination of just compensation. RCW 8.04.080

Although this is not the end, this post is long enough. The conclusion to eminent domain procedure for Washington State, Washington counties (including King County, Pierce County, Snohomish County, Kitsap County, Thurston County, Yakima County, and all the others), and Washington cities (including Seattle, Redmond, Everett, Bellevue, Tacoma, Yakima, Kennewick, Olympia, Bellingham, Spokane, Issaquah, Federal Way, Kent, Woodinville, and Auburn) will be in my next post.

Eminent Domain is Happening to You| How Does it Work?

Eminent Domain Procedure is Composed of Specific Statutory Rules

Like many legal processes, Washington State eminent domain is a creature of statute. Even though the Constitutions of Washington and the United States allow property to be taken for public purposes if just compensation is paid, how it actually happens is controlled by statute. What this means is the Washington State Legislature, many many years ago, got together and decided what rules the State, cities, counties, and corporations must follow when taking property from its citizens.

As you will see from the summary of the statutes below, Washington State eminent domain law is not an easy area of the law. There are important decisions to make that can have a tremendous impact on the money you get for your property. Failing to meet a deadline or notify the Court of a decision can have negatively affect your award of just compensation. So even though the information below should be very helpful and provide some background information on the eminent domain process, you should seriously consider hiring an Washington State eminent domain lawyer to represent you.

Your First Contact is Likely to be at a Public Meeting

Although it may seem like the deck is stacked against you as a citizen in this matter (in the end your property is going to be taken), one great piece of leverage you as a property owner has is your Washington State citizenship. Whether you believe it or not, the people making the decisions are trying to do what is best for the people of Washington, and in the end, the final decision makers are politicians, or elected officials. This means that at all times state, city and county governments must remember that they are working with their electorate, and if they want to get re-elected next term, they should probably treat you with respect.

Because of this power, most governmental entities proactively work to keep the public, and in particular those property owners that are expected to impacted by a project requiring eminent domain, aware of what is going on with the project. The condemning authority will also solicit input from property owners to make sure they haven't missed any critical information that could negatively affect the project.

If you receive notice of a pending project that may affect your property,
go to the meeting. At the meeting the proposed project will be outlined, probably over the properties impacted, and the condemning authority will describe and discuss the project and provide an anticipated timeline. If you go these meetings and see that your property is going to be impacted (and even if it is not) do not be afraid to ask questions, even tough questions, to the condemning officials. The purpose of the meeting is to answer these questions.

The sooner you contact a lawyer experienced in Washington State eminent domain law when you first find out that your property is being taken by eminent domain, the better. The attorney may be able to save your property, if the circumstances warrant. And if your property cannot be saved, an eminent domain lawyer can make sure the property is evaluated correctly the first time by the condemning authority, saving you, the property owner, time and money.

After Public Meetings Comes the Notice of Eminent Domain and the Appraisal

Although no condemning authority acts in precisely the same way at this point, and time constraints can force a deviation from standard operating procedure, generally the next step in the process is a notice that in fact your property will be taken by eminent domain and a request to allow an appraiser to meet with you to evaluate your property to determine fair market value and just compensation.

First and foremost, meet with the government's appraiser. Give them information you think is important to valuing the property. Allow them to come onto the property and view it. Absent very special circumstances, the condemning authority will be able to take your property for their project. If they are going to do that, you might as well get as much money as you can for as little time and expense as possible. And without your cooperation, an appraiser will probably not be able to adequately evaluate your property, they will probably come up with a low determination of just compensation, and you will be angry. Help them help you by providing pertinent information. Again, an eminent domain attorney can greatly assist in this process.

Second, keep in communication with the condemning authority. As I stated before, their goal (in most cases) is to get your property by paying just compensation, nothing more, nothing less. Help them do that by speaking with them.

When Appraisal is Complete an Offer Letter is Issued and Negotiations Begin

I'll give you the short and sweet version of this now, but once the appraisal is complete an offer letter will be drafted and presented to you. When you get the offer the important thing to remember is this is a starting point for negotiating the price of your property. The condemning authority is flexible on what they will pay. It simply needs to be justified.

At this time, if they will give it to you, get a copy of the appraisal and look at it to see how they formulated their opinion of just compensation. Most of the time the basis will be similar properties bought and sold in the area. If it is, that is great. If you can find better comparable sales for your property and point out other flaws in the appraisal you can get more money for your property taken through eminent domain.

But to do this you need an eminent domain expert. Someone versed in both Washington State property appraisal and eminent domain. An experienced eminent domain lawyer should be able to do this for you. Although lawyers can be intimidating, don't be afraid to call one. They really can help.

In the next post I'll discuss what happens if no agreement of the fair market value of the property taken can be reached.

Washington Eminent Domain | Why Can the Government Take My Property?

Getting the letter in the mail informing you that the state, county, city or some other condemning authority is taking your property through eminent domain can be one of the most frightening experience you will ever have. Part of the fear comes from the unknown. Questions probably run through your mind like "how can they do this?" "How much of my property is being taken?" "Is it possible to stop them?" All of these questions probably find no answers (unless you talk with an experienced eminent domain attorney) and as a result the nervousness just builds.

As an experienced eminent domain attorney I wanted to take some time to explain to you the background of eminent domain, the rules regulating it, and shed some light on the process. Hopefully after reading this you will at least have some answers to your most basic of questions.

Eminent Domain was Actually Created to Provide More Rights, Not Take them Away

Back in colonial times, when England ruled over the United States, the state of affairs relating to property was much much different. First, there wasn't any such thing, technically, as property ownership. All property was owned by the English family, and although they gave it out to lords and dukes and people of that nature, it was always subject to being taken back at a moments notice with no chance of being compensated for what was being taken.

For the founders of the United States of America, this practice of taking property without just compensation, often times for purposes undefined, was despised. The founders saw property ownership as a fundamental right of being a citizen in America, and fought the Revolutionary War to promote that right.

As the constitution was being drafted, it was clear that there were in fact times when property needed to be taken by the government. Public infrastructure, including sewers, roads, electric lines, cable, and many other utilities could not provide service to citizens without having the authority to take property to put them in. Additionally, war time situations often demanded additional property needs. The founders, in reaching this conclusion, faced a tough decision: how do they recognize the government's need to take property against an individual property owner's right to hold and own property without having it taken away?

The solution, the founders decided, was to provide a constitutional safeguard for individual property owners to prevent their land from being needlessly taken. The Fifth Amendment to the United States Constitution provides, in part, "nor shall private property be taken for public use, without just compensation." That single sentence provides every landowner great protections.

Washington State Eminent Domain Law also Provides Protection

When Washington entered statehood, it adopted its own constitution, and with it a very similar standard to that outlined in the US Constitution. Article 1, section 16 of the Washington State Constitution also provides that private property may not be taken for public use without just compensation.

In addition to the constitutional protection, Washington adopted laws governing eminent domain procedure. These laws outline exactly how a condemning authority must proceed if they want to take private property through eminent domain. Included in these rules are how the lawsuit must be structured, the rules the condemning authority must follow if they need the property quickly, the right to jury trial, and many other things. These rules provide you, the property owner, with the protections you need to make sure you are justly compensated for the loss of your property.

If Your Land is Being Condemned, Consult an Attorney to Ensure Fair Compensation is Received

Eminent domain law is not widely practiced. It can get pretty complicated at times. The condemning authority is sure to have attorneys on their side, because it makes sure they will abide by the rules outlined by the Washington Legislature and it makes sure they will pay just compensation. No more, no less.

To make sure just compensation is received for the taking of your property, speak with a Washington State eminent domain lawyer. They will at least be able to answer your questions and evaluate your situation to determine if you are entitled to more money for your land.

Welcome to Washington Eminent Domain Law

Welcome to Washington Eminent Domain Law Blog, a website dedicated to everything eminent domain in Washington State. Come here to find the latest news, case law, and helpful hints and tips for making sure just compensation is received. If you have any questions or comments, please feel free to email me at cmslawfirm@gmail.com.