Your Questions Answered

THESE ARE QUESTIONS FREQUENTLY ASKED BY LANDOWNERS FACING EMINENT DOMAIN. THE GENERAL INFORMATION PROVIDED MAY NOT APPLY TO YOU. THERE MAY BE OTHER INFORMATION IMPORTANT FOR YOUR CIRCUMSTANCES. THIS IS NOT LEGAL ADVICE, AND WE RECOMMEND YOU CONSULT AN EXPERIENCED LAWYER ABOUT YOUR SPECIFIC ISSUES.

How can they force me to give over my land?

Being subject to eminent domain can feel like getting punished for doing nothing wrong. When a landowner has property that is located “in the wrong place at the wrong time,” it can be taken if needed for a highway or roundabout or power line or some other purpose.

Who decided my property could be taken?

It depends. The Department of Transportation acquires private property for roads and other transportation projects. It makes those decisions itself.

Cities, school boards and other entities can also use this power. Their decisions can be reviewed by a court but getting a decision overturned is very difficult.

Utility companies get the power to take land or easements (easements are rights over someone else’s land without owning the land outright) under limited circumstances or when the Public Service Commission, a state agency, says they can. You can reach the Public Service Commission of Wisconsin’s website here.

Wisconsin laws about eminent domain are in Chapter 32 of our laws.

What am I supposed to get for having my property taken?

The law entitles you to “just compensation.” Whether you get an amount that you consider fair is another issue.

The “taking” of property is permanent. You have only one chance to protect yourself and get just compensation.

What should I expect first?

Expect to be contacted by a land agent, who will talk to you about the project. For condemnations done under Wisconsin law, you are supposed to be provided information from the State of Wisconsin about your rights.

If I am not comfortable with this, is there anything I can do?

First, know that you are not alone in your discomfort or confusion. There is no reason you should understand or be comfortable with being forced into a complicated legal process you never wanted when the result that be something else you don’t want – involuntary loss of your property. This is far outside normal experience.

Making it worse is the gap between your knowledge and experience and the knowledge and experience of the entity taking your property. Land agents are trained in negotiation. In describing the process, a land agent told the Court that “. . . my job was to get a right-of-way easement for as cheap as I possibly could.” (Transcript, Jefferson County Circuit Case No. 02 CV 152 Decicco v. Guardian Pipeline, October 20, 2004, p. 49.). Unless you are an experienced negotiator, the advantage heavily favors the other side.

We can help. For a limited and capped cost, we will explain the process and take over negotiations for you. Calls, emails, and letters to you will stop. Instead, they will have to deal with an experienced lawyer whose job is your interests.

How do they come up with the amount they offer to me?

The entity taking your property is supposed to develop an offer based on an appraisal on your property. It may provide you an offer with an appraisal that seems wrong to you, or just confusing. It may even try to bypass getting an appraisal.

Remember that under Wisconsin law: you have the right to an independent opinion by an appraiser that you select, and the other side pays for.

How can I figure out what my loss is worth?

We almost always recommend getting your own appraisal. Eminent domain law requires “full narrative” appraisals. These appraisals are not at all like the one or two-page bank documents you may have seen when buying or refinancing a home.

According to the Wisconsin Department of Commerce, an appraisal is:

“A detailed and comprehensive description of the process an appraiser uses in regard to a certain property to reach an opinion of its fair market value. The opinion must contain the appraiser’s rationale for determining value and be documented by market data which supports the appraiser’s rationale.”

The entity taking your property – the “condemnor” – is supposed to try consult with you when they do their appraisal.

Appraisals in eminent domain usually come in small bound booklets. The booklet is likely to include sections that:

• describe the appraisal process;
• disclose the kind of appraisal analysis used (there are several);
• describe your property, and its zoning and potential uses;
• present research on the community and the market for your property;
• portray other property the appraiser considers comparable to yours; and
• conclude how much compensation you should receive.

To come up with a compensation amount, the appraisal will usually compare your property to other property or that has sold or received a legitimate offer to purchase.

What if I want to get a second opinion?

You can get a second opinion by an independent appraiser that you choose. The condemnor is required to pay the “reasonable costs” of that opinion. There are some strict rules you have to comply with to ensure you don’t end up with the cost. For example, in Wisconsin you have to provide the entity taking your property with a copy of your independent appraisal, in their hands (a postmark is not good enough) within 60 days of when they sent you their appraisal – not the day you got it. If you want a second opinion, this is not a lot of time. It is usually best to have your independent eminent domain appraiser lined up and ready to go even before you receive an appraisal from the other side.

I am not in the real estate business. How am I supposed to know where to go to get a reliable second opinion?

This is a good question. Landowners brought into the eminent domain process against their will are not in the business of knowing about appraisers, lawyers, eminent domain procedures, condemnation rights, the legal language of property acquisition documents, etc., etc. The sense of confusion is one (but only one) of the reasons why the process feels so unfair.

You may find a qualified local appraiser who could do the job and who has great familiarity with the local real estate market and market trends. There are also appraisers who focus a lot on eminent domain takings. When you hire an appraiser, we recommend you first find out how much of their work is for entities that take property from landowners. Appraisal opinions can vary a lot. It is reasonable for landowners to beware of the potential for a “lowball” appraisal from an appraiser who wants repeat business. You can’t provide an appraiser with repeat business, so you have to know what you are doing, and choose carefully.

Is it worth the trouble of getting a second opinion?

We think it is worth getting a second opinion in all but the most unusual circumstances. The normal situation in eminent domain, where property is being taken against the landowner’s will, is that the landowner’s appraisers’ estimates of the amount of value lost will be much higher than the appraisal from the entity taking the property.

In fact, it is not unusual for an independent appraisal to find three to ten times as much loss as an appraisal you get from the entity trying to take your land.

Once I get my second opinion, what can I do with it?

An independent opinion can be used to negotiate over the price. It can also be used in court, if needed.

Will the offered price increase after I get my appraisal?

No individual case can be predicted. In our experience, the entity taking your property will usually increase its offer after seeing an independent appraisal prepared for the landowner.

If I negotiate the price that I want, do I have to accept the other terms?

No.  And we generally recommend against terms that take away rights a landowner does not have to give up.

If only part of your property is being taken, you need to consider how the property that is left to you will “work.” If there is something you could get from the entity that is taking your property that would help you out after the “taking,” you need to get it in writing.

This is another area where having someone experienced in the process can help you protect yourself.

What if I were to accept an offer and then come to believe that it’s too little. 

In some circumstances you can seek more money after you have been paid by the entity taking your property. You have to be careful to not give up this right.

What happens if I don’t come to an agreement?

This is often the case. There are legal procedures for the entity that wants your property to take it from you so it can get on with its project.  The issue of how much compensation you are owed is sent to a separate process. A t that point, you are in a lawsuit.

Can I recover the costs of going to court to get just compensation?

Yes, in many circumstances. Landowners who win jury awards greater than certain benchmarks get back their “litigation expenses.”

As with almost everything in a lawsuit, there are no guarantees. Risks cannot be avoided, but they can be managed.  If you are in court, you need the best help you can find.

What is your fee structure?

For negotiation we have a fixed upfront fee, and a later fee that is based on the difference between what was on offer at the time you contracted with us and the amount you are paid in compensation. If you have an initial conference with us and decide to use this service, the fixed fee is reduced by the cost of the initial conference.

For cases that go to court, we take most matters on a contingency or partial contingency basis, meaning all or most of what we are paid depends on success in court.

How much experience do you have in these kinds of matters?

It is fair to say that we are continuously working on eminent domain cases and issues. We have sometimes worked on dozens of cases at the same time. The lawyer leading our eminent domain and condemnation practice has been at this for more than 20 years. We aim to provide the best possible representation to every client, have a strong reputation, and are proud to have earned praise for our work.