Condemnation is defined as the taking of private property for a public use under the right of eminent domain. This power is granted to a public entity through the Eminent Domain Act of Kentucky and is exercised to take property without the owner’s permission. As a property owner in Kentucky, especially in areas experiencing rapid growth, it is important to understand both the government’s ability to take your property and your legal rights as a property owner if that happens.
In most circumstances, once an entity authorized to do so chooses to exercise the power of eminent domain it is exceedingly difficult to prove the taking is not justified. In fact, once a public entity determines that the taking of private property is necessary, it enjoys a presumption that a taking is for a public use. Practically, what this means is that the central issue most often litigate in such a suit is the property’s value and the amount of compensation that will be paid to its owner.
By law, before filing suit the condemning entity must first approach a property owner and make a good faith offer to purchase the property through a private sale. However, an entity authorized to exercise the power of eminent domain is not required to haggle with a property owner and it satisfies the good faith requirement so long as it makes a legitimate offer. This is true whether the property owner accepts or rejects the offer.
Once suit is filed, the Court will appoint three neutral “commissioners” to view and evaluate the property. The commissioners will then submit a report assigning a value to the property. Once the commissioners’ report is filed, the property owner is served with the suit and given 20 days to respond. If the property owner does not respond, the Court will automatically enter a judgment in favor of the condemning entity giving it the right to immediately take possession after paying to the Court the amount stated in the commissioners’ report.
If the property owner responds to the suit and challenges the entity’s right to exercise the power of eminent domain, the Court then makes a legal determination regarding whether the entity does in fact have the right to condemn the property. In this situation, the burden is on the property owner to prove that the taking is either not necessary or not for a public purpose. Again, this is a lofty burden that most property owners cannot meet. In most circumstances the Court will enter judgment on this issue in favor of the condemning entity thereby allowing it to take immediate possession upon payment of the commissioners’ award to the Court.
This judgment can immediately be appealed. If the judgment is not appealed the condemning party or the property owner can contest the commissioners’ assigned value as being too high or too low. All issues relating to value are decided by a jury, but that is the only issue a jury will decide. Once the jury renders its decision on value final judgment is entered and this judgment can also be appealed by either party.
The legal mechanism utilized in eminent domain cases is complex and based on a unique statutory framework. The law firm of Skeeters Bennett Wilson Humphrey recommends that property owners immediately consult a competent attorney as soon as they become aware that a public entity has an interest in acquiring their land. Competent counsel can properly advise a property owner and ensure that their property and due process rights are not violated.
If you find yourself in this situation, the attorneys at Skeeters Bennett Wilson Humphrey have been representing property owners facing condemnation for nearly 50 years. We have the knowledge and the experience to guide you through the condemnation process and secure fair compensation for the value of your land.