The sooner, the better. Fixel & Willis will closely monitor the condemning authority’s plans and will keep you fully informed as those plans evolve and related activities occur which may affect your property. In addition, there are beneficial pre-condemnation planning steps that can be taken when the condemning authority’s initial design activities become known.
Just a few examples of Fixel & Willis’s recommended pre-condemnation planning include:
- Carefully limiting communications with representatives and appraisers of the condemning authority who later may not accurately recall what has been communicated or who may improperly use such communications;
- Avoiding confrontations with the local property tax assessor since a property owner’s position that property is assessed at too high a value can undermine the credibility of the property owner’s eminent domain appraiser;
- Applying for and securing rezoning, plat approval or a building permit, if possible and it is anticipated the condemning authority might contend that these types of development authorizations are not obtainable;
- Avoiding having the threat of condemnation lead to listing a property or business for sale at a price less than its real value;
- Including equitable and adequate language in any option or sales agreement to ensure the intent of the buyer and seller regarding how to handle condemnation proceeds is enforceable whether or not transfer of title occurs before the eminent domain process is concluded;
- Correcting the unintentional or unnecessary holding of contiguous parcels in different corporate or family names which if not corrected, may result in the condemning authority improperly appraising the taking and damages to remaining property;
- Negotiating appropriate “condemnation clauses” in leases to clearly outline the landlord’s share of condemnation proceeds versus the tenant’s share;
- Ensuring that leases reflect the intent of all concerned regarding how long the business tenant has a right to occupy the site; and
- Extending lease terms to provide owners rental income by giving tenants an incentive to “stay in place” after tenants learn of the threat of condemnation and where practicable during the condemning authority’s construction period even though traffic counts are anticipated to be reduced.