Glossary of terms commonly used in eminent domain

Below is list of key phrases that you will likely hear as you navigate the eminent domain process in Georgia:

• Answer – There are strict deadlines to respond, or file an Answer, to a complaint or lawsuit by the government to take your property.




• Appraisal – An appraisal is a written professional assessment of a property’s value that is intended to represent its fair market valuation. There are several different appraisal methodologies so appraisals can vary widely.




• Assessed Value – The assessed value is the value assigned to real estate for property tax purposes. This may be different than the property’s “fair market value.”




• Before Value/After Value – Eminent domain appraisers evaluate the property’s value before any part is taken (“before value”) and after the property is taken (“after value”). In partial takings, your compensation should be the difference in the fair market value of your property before and after the taking.




• Comparable Sales – Comparable sales are recent sales of similar properties in the market area. The Sales Comparison Approach of property evaluation takes into account comparable sales when determining fair market value.




• Complaint – A complaint is a petition or filing made by the government (or another condemning agency) as part of the eminent domain taking process.




• Condemnation – Condemnation is the legal process by which the Georgia government can take (or condemn) your property or property rights for a project that benefits the public. It must compensate you for its taking whether your property is taken completely, partially, or is “only” left burdened by easements. In a condemnation, the government files a condemnation lawsuit and deposits its initial offer with the court.




• Condemnee – The condemnee is the property owner whose land is being seized under the power of eminent domain. It is possible to become a condemnee without even being notified of it first.




• Condemnor/Condemning Authority – The condemnor, or condemning authority, is the entity that seizes your property to use it for public good. In Georgia, the government and its agencies at the state, county, and municipal levels can take your land via eminent domain. Entities partnered with the government, such as public utilities, may also have the power to condemn, or take your property.




• Consent Judgment – A consent judgment is a final agreement between the condemnor and the property owner. If signed and issued by a judge, the judgment ends the litigation with a legally enforceable agreement.




• Damages – Damages are an estimate of the impact of a property taking, or condemnation. There are many different types of damages that can be included in the government’s compensation offer. Property owners may benefit greatly from consulting with an experienced eminent domain attorney to ensure that all potential damages have been considered.




• Demand – The phase in the eminent domain process where the property owner and their attorney can present their case for a higher offer to the condemning agency.




• Deposit – The amount of just compensation that the condemning authority believes is the fair market value of the property being taken. This money is put on “deposit” with the Clerk of the Court for the county where the property is located. Property owners can pursue additional compensation after the deposit has been made. Note: Our firm’s fees will never come out of the initial deposit – if there is no increase, you pay us nothing.² 




• Displacee – In eminent domain, a displacee is a property owner who is displaced from a home or business because of an eminent domain taking. The law requires condemning authorities to plan ahead of time to help those their projects may displace. These plans may contain relocation expense compensation, such as moving expenses.




• Easements – Easements grant the government the right to access and alter your property within certain guidelines. They can be temporary or permanent in duration, and there are several different kinds, such as utility easements, drainage easements, sewer easements, and construction easements. The government is required to pay you for the right to access and use your property.




• Eminent Domain – Eminent domain is the legal principle whereby the government has the right to take all or part of your property for projects that benefit the public. In eminent domain, the government must also provide you with just compensation, which should represent the impact to the fair market value of your property.




• Fair Market Value – Fair market value is generally considered to be what a willing seller and a willing and knowledgeable buyer would agree on as a fair price. In eminent domain proceedings, the condemnor is required to pay the property owner just compensation, which should represent the impact to the fair market value of the property.




• Fee Taking – Typical takings by the government are called “fee takings,” where the government takes and now owns 100% of your property, with no ownership interest left for you.




• Highest/Best Use – In general, the highest and best use of your property is the use that would reasonably be expected to result in the highest value or property worth.




• Initial Offer – The initial offer in eminent domain is the amount of compensation that the government first offers you to take your land for a public use project.




• Inverse Condemnation – In an inverse condemnation taking, the government has taken property or a property right without first having paid for it. This type of taking forces a property owner to bring an inverse condemnation claim to fight for the just compensation to which they may be entitled.




• Just Compensation – The Fifth Amendment states that the government must pay “just compensation” if it takes a private citizen’s property for the public good. Just compensation should represent the fair market value of the property being acquired, as well as the resulting decrease in value to any remaining property.




• Litigation – If GDOT wants to take possession of your property while you’re still trying to negotiate a better offer, they might engage in litigation. This means they may file a lawsuit announcing that they’re taking ownership of your property immediately, even as you continue to fight for a better offer. And if GDOT won’t play fair in negotiating that offer, your attorney may ultimately need to make your case in front of a jury in the fight for a fair outcome.




• Mediation – If the court orders mediation as part of the eminent domain process, the property owner and the government present their offer and counteroffer in front of a mediator and make a good faith effort to try to come to an agreement.




• Memorandum of Action – The condemnor, at the time of the filing of the complaint containing the declaration of taking and deposit of estimated compensation, must record a memorandum of action with the register of deeds in all counties in which the land involved is located.




• Paired Sales – One property valuation approach uses paired sales analysis in which an appraiser estimates the likelihood of damages from the taking by looking at several pairs of properties. Each pair of properties is as similar as possible with the exception of one characteristic or feature that resulted from the impact the appraiser is trying to better evaluate.




• Public Use – When private property is taken by the government in eminent domain, the Fifth Amendment of the U.S. Constitution states that it must be for “public use.” Over the years, courts have broadly interpreted this term, but in general, it refers to the property being used for the common good of the community or benefit to the public. Widely accepted examples of public use in eminent domain include utility facilities, highways, sewers, public schools, public parks, and public utility projects.




• Relocation – Relocation refers the types of compensation a property owner can seek when a taking forces them to relocate. Relocation benefits may cover costs such as moving expenses and search services that assist in finding new locations.




• Remainder – In eminent domain, the remainder is the remaining land after an eminent domain taking. Property owners can seek compensation for damages to the remainder, in addition to the fair market value of the property taken.




• Right-of-Way (ROW) Plans – Right-of-Way plans are the government’s plans which determine the development timeline, the budget, and the amount of land needed for public use projects. 




• Taking/Acquisition – A taking or acquisition in eminent domain refers to when the government seizes private property for public use. The Fifth Amendment requires that the government fairly compensate the property owner when taking a property. Takings can be physical (when legal title and possession of the land is generally taken once payment is made) or regulatory (when possession is not physically taken, but the land is made useless and without value by an action of the government).




• Trial – If no agreement on compensation is reached in the possible mediation phase of the eminent domain process, property owners and their attorneys can take their eminent domain case to trial in front of a judge and/or jury to fight for compensation.




• Uneconomic Remainder – If the government takes part of your property and leaves you with a portion that can no longer be used or developed on its own, you have an uneconomic remainder (or remnant). Generally, the condemning agency must make an offer to purchase uneconomic remnants, but owners are not required to sell these portions.




• Valuation Methods – Valuation methods are processes and calculations used to determine the value of a property. Three common valuation methods that appraisers use in eminent domain are the cost approach, the sales comparison approach, and the income approach.