5 Common Defenses to Condemnation

In Texas, both public and private entities may be authorized to condemn your property for a legitimate public purpose, but private entities are not by default accorded such powers — they must be authorized pursuant to a delegation of eminent domain powers by a public entity. If a private entity is attempting to exercise eminent domain authority and thereby condemn your property, it’s important to evaluate their authority and determine whether they are truly authorized to effect such a taking.

In some cases, the private entity may be overstepping their authority. For example, the private entity may be wrongly interpreting a delegation of eminent domain powers as giving them statewide authority, when in fact they were only given powers over a particular area within Texas.

Eminent domain authority may only be exercised — and property condemned — if the taking is meant to effectuate a legitimate public purpose. Challenging the legitimacy of a stated public purpose can be quite difficult, as public purposes can be rather variable in nature. For example, building an airport is a fairly obvious public purpose. On the other hand, clearing land for the construction of a factory is much more ambiguous.

Fortunately for landowners, Texas statutory law elaborates on certain circumstances where condemnation is prohibited due to an illegitimate public purpose: condemnation is prohibited where the taking is meant to confer a private benefit to a specific private entity or individual, or where the public use is clearly a mask for the grant of private benefits, or where the public use has an exclusively “economic development” orientation.

If you believe that eminent domain authority is being exercised incorrectly, and you are interested in challenging the taking, it’s worth speaking to an experienced Houston eminent domain attorney for further assistance.

Condemnation of a particular parcel of land must be reasonably necessary to effectuate the legitimate public purpose claimed by the taking entity. Just because the taking entity has a legitimate public purpose (i.e., a water utility project) does not give them absolute authority to condemn property. The taking entity must demonstrate that the taking of “your property” is reasonably necessary. If you can show that it is simply unnecessary — for example, if you can demonstrate that existing lands would allow for a reasonable-cost substitute, and serves the government’s purposes — then you may be able to prevent the taking

Oftentimes, the taking entity understands that you are in a vulnerable position with respect to your property, once they have exercised their eminent domain authority — after all, in order to successfully prevent the taking, you will have to work with an attorney, gather necessary evidence, and put forth a comprehensive defense. Given these financial/legal barriers, the taking entity is very likely to make a purchasing offer that underestimates the true value of your property.

Importantly, any bona fide offer of compensation must be “just and adequate.” Generally speaking, just and adequate compensation is the fair market value for the property. If the taking entity offers to pay you less than the fair market value, then you may challenge their offer and force them to correct it. You’ll likely want to work with an independent appraisal specialist to evaluate the fair market value of your property.

When exercising their eminent domain authority, the taking entity is only entitled to take the amount of property that is actually necessary for the public purpose at-issue. If you own hundreds of acres of farmland, for example, the taking entity cannot condemn all your farmland simply because they wish to control a narrow strip of land for building highway and utility infrastructure. If you believe that the taking entity has condemned in excess of their legitimate need, then you may challenge the taking and potentially limit the extent thereof.