ISSUES & POLICY Where We Stand
Eminent Domain Reform: Make the Landowner Whole
By Richard Thorpe, Texas and Southwestern Cattle Raisers Association president
Here’s an interesting fact about the eminent domain condemnation process: If the landowner does not accept the price the condemning entity offers for the land, then according to the law the condemning entity sues the landowner to start the condemnation process.
Suddenly, you who are living your life on land you own are faced with either taking an offer that you think is too low or paying attorneys and their experts to fight the lawsuit and seek a price you think is fair.
At Texas and Southwestern Cattle Raisers Association (TSCRA), we think sensible eminent domain reform should give the condemning entity and the landowner an incentive to resolve their differences out of court. We have clearly advocated for condemning entities to make a bona fide offer from the very start for land needed for public projects. Responses to our Eminent Domain Survey, at tscra.org, indicate it is standard operating procedure for some condemnors to make initial offers that are so low that landowners feel cheated and are intimidated by the threat of a lawsuit if they don’t accept.
Since the lawsuit starts with the condemning entity, we think it is reasonable for that condemnor to pay the landowner’s attorney expenses if the court decides in favor of the landowner and rules that the condemnor must pay a significantly higher price than the original offer.
To be fair, if the court agrees with the condemning entity that the original offer is fair, then the responsibility for landowner’s expenses would remain with the landowner.
Critics of our goals with eminent domain reform predict that this type of change will create a cottage industry of attorneys trolling for landowners in the path of a public project.
I disagree with that prediction and ask this simple question: Why hasn’t that already happened?
Most landowners are land rich and cash poor; therefore, in many eminent domain lawsuits the landowner must hire an attorney on a contingency fee. It is common for the lawyer to agree to be paid a percentage of the difference between the final offer and court-awarded offer.
Why isn’t there already a sub-culture of attorneys chasing major public projects and handing out flyers at nearby coffee shops promising higher court-awarded settlements? If this has not already happened with the laws under which we now operate, I can’t see how advocating for a realistic offer to the landowner at the start of a project will spark a cottage industry of eminent domain chasers.
We are well aware that some condemning entities make bona fide offers from the start to avoid the time and expense of lawsuits. We appreciate entities that are truly working for the good of the public by making a fair offer, avoiding a lawsuit and saving public dollars.
We are asked another question by our opponents: If the landowner can win a lawsuit and get fair compensation, why should the condemnor have to pay the landowner’s legal expenses?
There are 2 reasons for this reform. First, a landowner may receive fair compensation, but after paying the contingency fee to the attorney, which may be 30 percent or more of the difference in the final offer and the final court award, the landowner is never made whole. They never receive the actual value of the land they are forced to sell.
Second, there must be some financial penalty against condemning entities that will give them a clear and compelling reason to make a fair offer. Having to pay your opponent’s legal fees when you make an unfair offer is a clear penalty.
TSCRA officers, committee leaders, members and staff are working to make changes to state law that will give public entities an incentive to be responsible with public funds by making a bona fide offer at the beginning of a public project to avoid the time and expense of a condemnation lawsuit, or face paying the landowner’s legal expenses.
I urge you to call your state senator and state representative and let them know you support this change to eminent domain laws in Texas.
“Make Landowners Whole” is from the March 2017 issue of The Cattleman magazine.