OWNERS GUIDE

TENNESSEE CONDEMNATION PROCESS

This guide should not serve as a substitute for consultation with an attorney. Whenever you have a specific question about the condemnation process or the particulars of your case, always discuss it with a qualified eminent domain attorney.


A public hearing will begin the process leading up to the eventual purchase of your property by voluntary sale or through a forced condemnation. A property owner who wishes to avoid condemnation should actively campaign against the future acquisition of his or her property at this stage of the process to achieve maximum effect. Consultation with an experienced eminent domain lawyer is recommended at this stage.

Once a project has made it through the public hearing and design phases, the land acquisition process begins. First, an appraisal is obtained by the condemning authority and an offer to purchase is extended to the property owner by a government negotiator.

At this stage, there is little opportunity to negotiate more than a modest increase in compensation. The advice of an experienced attorney should be obtained at this time so that the owner is represented by counsel when the first offer to purchase is made.

If it is determined that the government's offer does not adequately compensate the owner for the property being acquired, then the offer should be rejected and the parties should proceed to condemnation in most cases.

The condemnation lawsuit is filed in the Circuit Court of the county where the land is located. At this time, the government must deposit into court a sum of money equal to the government appraiser's opinion of just compensation.

In most cases, the property owner has only five days after filing of the lawsuit to object the government's right to take the property or this right will be waived.

It is imperative that the owner immediately seek the advice of an experienced eminent domain trial lawyer upon learning that a Petition for Condemnation has been filed in the Circuit Court.

If the government's right to take private property for a public use is contested, the parties will proceed to a "possession hearing." A judge will determine whether the government can prove the taking is for a legitimate public purpose and that its actions are not "arbitrary or capricious."

If the government does not meet its burden of proof at the possession hearing, the lawsuit will be dismissed and the property owner will be reimbursed for all attorney's fees and expert witness fees incurred in the legal defense of private property rights.

In contrast, if the judge grants possession of the condemned property to the government at this hearing, this action will establish the "date of taking" and the judge will enter an "order of possession" allowing the construction of the public improvement to go forward.

Following the possession hearing, the property owner may withdraw all the money deposited by the government and continue to fight to receive additional compensation.

The attorney will work with an expert condemnation appraiser to prepare the property owner's case for either settlement or jury trial. In most cases, the use of an appraiser is necessary to obtain full compensation. Both the appraiser and the landowner will have an opportunity to tell the jury their opinion of just compensation.

The property will be valued by the appraiser based upon its "highest and best use" as of the "date of taking." The property owner is entitled to receive compensation for all land and improvements taken by the government and for any damage to the market value of remaining property.

If the case is settled before trial, the government deposits the additional compensation with the court and it can be withdrawn after entry of the Consent Decree and Final Judgment by the judge.

If the case goes to a jury trial and the jury awards an increase in compensation to the property owner, this increase will bear interest at the rate of "prime plus two percent" from the date of taking until the additional funds owed to the property owner are deposited with the court. After entry of the Final Judgment by the judge, the remaining funds bearing interest may be withdrawn by the property owner and the case will be concluded. The Final Judgment is then recorded with the Register of Deeds giving notice of the final transfer of all title in the condemned property to the government.

If part or all of your property is taken by the government, the condemnation process provides the only opportunity you will ever have to receive full and fair compensation for the property taken. By taking your case to court, you can be assured of a "level playing field" in the quest to receive just compenation.

TO RECEIVE A COPY OF "THE PROPERTY OWNER'S GUIDE TO CONDEMNATION LAW IN TENNESSEE," CONTACT THE LAW OFFICE OF JAMES W. FISHER AND PROVIDE YOUR FULL NAME AND MAILING ADDRESS. THE OWNER'S GUIDE WILL BE MAILED WITHIN 72 HOURS OF RECEIPT OF YOUR REQUEST.