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Practices & Industries

Eminent Domain and Condemnation

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The law of eminent domain creates complex legal problems when authorities attempt to acquire real property or business. Before the government can take or damage property, you have a right to compensation.

Why Baker Donelson?


Diverse team of attorneys experienced in all aspects of condemnation law
Represent clients in all proceedings related to eminent domain law
Experience covers a broad spectrum of matters affecting investor-owned utilities, private enterprises, real estate and investment entities, and individual property owners

Overview


Key Contact

Eminent domain is not simply a real estate issue. It is often a significant business issue. When government projects threaten property, access, operations, or future development plans, organizations need a strategy that protects both their assets and their long-term value.

Eminent Domain and Condemnation

Eminent domain, also known as condemnation, allows government entities and certain condemning authorities to acquire private property for public use, but the impact of a taking often extends far beyond the land itself. For businesses, developers, institutional investors, health care organizations, and property owners, a condemnation can affect access, visibility, operations, future development plans, and long-term asset value.

We represent clients facing eminent domain and condemnation matters at the local, state, and federal levels. We help clients evaluate the full impact of a proposed taking, negotiate strategically with condemning authorities, and pursue compensation that reflects both the real estate loss and the broader business consequences of the project.

Protecting Property, Operations, and Enterprise Value

A condemnation matter is rarely just a valuation dispute. A taking may alter access points, reduce visibility, disrupt customer traffic, impair logistics, limit expansion plans, or affect the long-term value of a single property or a broader real estate portfolio.

Our team works with appraisers, business valuation professionals, engineers, and other industry experts to build strategies that address the full scope of a client's loss. Whether a project affects one parcel, a critical operating location, or multiple properties across jurisdictions, we focus on protecting assets, minimizing operational disruption, and positioning clients for the best possible result.

The Condemnation Process

Although each matter depends on the applicable law, project, property, and condemning authority, condemnation matters commonly involve several stages: notice of a proposed acquisition, valuation, negotiation, deposit or payment into court, challenges to the taking or compensation, discovery, mediation, trial, and appeal.

Early involvement can be important because decisions made at the outset may affect leverage, valuation evidence, operational planning, and litigation strategy. We help clients assess the project, identify practical and legal issues, coordinate expert analysis, and pursue a result that reflects the full impact of the taking.

What Compensation May Include

Compensation in an eminent domain or condemnation matter may involve more than the value of the property actually taken. Depending on the facts and applicable law, it may include issues related to real estate value, business impact, consequential damages, relocation, access, visibility, and mitigation costs.

We assist clients with evaluating whether the condemning authority's offer reflects the full scope of the loss. Our approach considers not only the land or improvements affected, but also how the project may change the way the property functions for the business, tenants, customers, and long-term investment strategy.

Inverse Condemnation

Inverse condemnation may arise when government action damages, limits, or interferes with private property rights without a formal condemnation proceeding.

For property owners and businesses, inverse condemnation issues can involve practical questions about access, use, value, and operational impact. We help clients evaluate whether government action has affected property rights and whether compensation or other remedies may be available based on the governing law and facts.

Experience in High-Impact Eminent Domain Matters

Our team has represented businesses, property owners, and institutional clients in eminent domain and condemnation matters involving commercial properties, retail sites, convenience stores, fuel operations, trucking facilities, warehouses, recreational facilities, agricultural land, and investment properties.

Representative experience includes:

  • Resolved an eminent domain matter involving a corner interstate fast food restaurant site in metro Atlanta where the taking affected principal access to the property.
  • Resolved a condemnation matter involving right of way for an access road connected to a new automobile assembly plant in west Georgia.
  • Mediated an eminent domain matter for an internationally owned convenience store chain involving partial loss of access that would have affected the site's continued use as a convenience store.
  • Resolved a major condemnation matter for a national trucking firm in Savannah involving plan revisions, avoidance of the taking of an office building, avoidance of landlocking, and payment for property taken, consequential damages, and mitigation expense.
  • Tried a business loss and real estate condemnation case involving property taken from, and damage to, a warehouse distribution company.
  • Negotiated a settlement for a nationally traded REIT in an eminent domain matter involving damage to leased property used as an auto dealership.
  • Obtained an appellate-affirmed verdict involving the partial taking of a vacant agricultural tract, with the award finalized after the Supreme Court of Georgia unanimously denied certiorari.

Results may vary depending on your particular facts and legal circumstances.

  • Settled an eminent domain matter on behalf of a fast food restaurant corporation involving a corner interstate site in Clayton County in metro Atlanta. The Department of Transportation condemned the principal access to the site, thus decreasing the value of the property. The DOT paid $2.3 million pursuant to the consent judgment to conclude the settlement, which represented a 200 percent increase over the original sum offered by the DOT.

  • Settled condemnation for taking of right of way for access road constructed for new automobile assembly plant in west Georgia. Settlement was for $1.3 million dollars which is a 228 percent increase over the DOT pay-in to court.

  • Successfully mediated an eminent domain matter for an internationally-owned convenience store chain in north Georgia. The case involved a partial loss of access that would cause the site to be unusable as a convenience store. The case settled for $1,075,000, which represented a 142 percent increase over DOT's original pay-in to the court upon filing the declaration of taking.

  • Settled major condemnation for national trucking firm in Savannah. Settlement involved substantial plan revisions avoiding taking of office building and land locking of property. In addition funds of $1.5 million were paid for property taken and for consequential damages and mitigation expense.

  • Tried a business loss and real estate condemnation case in west Georgia. After a nine-day trial obtained a jury verdict resulting in a recovery of $1.9 million dollars which represented a 100 percent increase over sums paid into court by the GDOT. The case involved a taking of property from and damage to a warehouse distribution company.

  • Negotiated a settlement for owners of a vacant tract of land who had a portion of their property condemned by the DOT; settlement was a 3,266 percent increase over what the DOT paid into court.

  • Negotiated a 743 percent business loss compensation increase over the Department of Transportation's initial offer for the total taking of a convenience food store with a retail fuel sales tenant's business.

  • Negotiated a $2.550 million settlement for a nationally-traded REIT in an eminent domain case involving damage to a property under lease as an auto dealership, with the settlement representing a 252 percent increase over the sum originally paid into court by the Department of Transportation.

  • Received a jury verdict awarding a 429 percent real estate compensation increase over the Georgia Department of Transportation's initial offer for the partial taking of a vacant agricultural tract. The verdict was affirmed by the Georgia Court of Appeals and finalized by the Supreme Court of Georgia upon the unanimous denial of a writ of certiorari, resulting in total award exceeding $1 million.

  • Negotiated a $2.3 million settlement in a condemnation case on behalf of a large convenience store operator, with the settlement representing a 125 percent increase over sums the Department of Transportation had deposited with the court.

  • Negotiated a 340 percent real estate compensation increase over the Department of Transportation initial offer for the partial taking of an interstate-oriented driving range/recreational facility.

  • Negotiated a 153 percent real estate compensation increase over the Department of Transportation's initial offer for the partial taking of a national fast food chain restaurant.

  • Negotiated a 181 percent combined real estate/business loss compensation increase over the Department of Transportation's initial offer for the total taking of a convenience food store with a retail fuel sales tenant's business.

When should experienced eminent-domain counsel become involved?

Counsel should be involved as soon as a project is identified, and preferably before the owner submits financial information, obtains an appraisal, alters development plans, grants access, or begins substantive negotiations. Early involvement is not merely defensive. It allows the legal, valuation, engineering, and business strategies to be developed before important facts or negotiating positions become fixed. It also protects communications and work product of the client and any relevant experts while the various positions are being examined.

What should a business do when it first learns that its property may be affected?

Early action can materially affect the outcome. Before negotiations begin, the business should identify the project's potential effects, preserve relevant valuation and operational evidence, review title and lease documents, evaluate planned improvements or transactions, and avoid statements or agreements that may limit future claims. Counsel can also assess whether the condemning authority has the legal authority to acquire the property and whether the proposed scope of the taking is justified, while helping safeguard legal analyses, strategies, and communications through applicable attorney-client privilege and work product protections.

Why can the government's appraisal substantially understate the economic impact of a taking?

Because the government is not likely to understand the nuanced usage of any particular parcel, its appraisal may focus principally on the land and improvements physically acquired. In a partial taking, however, the larger loss may arise from the project's effect on the remaining property, including impaired access, reduced utility, changed circulation, development constraints, loss of parking, or interference with the property's highest and best use. A sound valuation requires analysis of the property and the business consequences of the project as an integrated whole.

How are damages evaluated in a partial taking?

Compensation may include both the value of the property acquired and any compensable diminution in the value of the remaining property. The analysis ordinarily compares the value and utility of the entire property before the taking with the value and utility of what remains after the project is completed. Project plans, access controls, grading, drainage, construction limits, easements, and future development restrictions may all be important.

Can a business recover losses caused by disruption to its operations?

The answer depends heavily on the governing law and the evidence. Some jurisdictions permit recovery of qualifying business losses; others restrict or exclude them. Even when business losses are not independently recoverable, evidence concerning operations may help demonstrate the effect of the taking on the real estate, leasehold interest, access, or highest and best use. These claims require careful separation of compensable loss from ordinary inconvenience or speculative harm.

How can condemnation affect property that is being developed, acquired, financed, or sold?

A threatened taking can alter site plans, development density, access, entitlements, financing assumptions, contractual obligations, and transaction value. Purchase agreements, leases, loan documents, and development contracts should allocate responsibility for the claim, control of the litigation, settlement authority, and ownership of any award. Those provisions should be addressed before the condemnation proceeds become the subject of a dispute among stakeholders or applicable law limits the right of a stakeholder to receive compensation based on various status considerations.

Who is entitled to the condemnation award when property is leased or subject to a mortgage?

Owners, tenants, lenders, easement holders, and other parties may hold competing interests in the property or the award. Their rights depend on applicable law and the governing documents, including condemnation clauses in leases and loan agreements. Identifying those interests early is essential because the condemning authority's payment does not necessarily resolve how the proceeds should be allocated.

Should a property owner provide its own appraisal to the condemning authority?

Not automatically. An appraisal can be useful, but commissioning or disclosing one prematurely may anchor negotiations before the project's full effects are understood. The better course is usually to develop the legal, engineering, operational, and valuation theories together, then determine what information should be presented, when it should be presented, and for what strategic purpose. Some jurisdictions do not require the government to produce its appraisal.

What evidence should a business preserve?

Important evidence may include historical and current site plans, surveys, appraisals, financial records, traffic and customer data, development studies, tenant information, photographs, correspondence with governmental officials, and records of planned improvements or transactions.

Can the necessity or scope of a taking be challenged?

In appropriate circumstances, an owner may challenge the condemning authority's power, public purpose, compliance with statutory procedures, necessity, or attempt to acquire more property or broader rights than the project reasonably requires. These challenges are often governed by short deadlines and may need to be raised separately from the dispute regarding compensation.

What is inverse condemnation, and when does it become a commercial concern?

Inverse condemnation is a claim initiated by the property owner when governmental action has taken or damaged a protected property interest without using formal condemnation procedures or paying required compensation. Potential examples include recurring flooding, physical invasion, denial of access, or governmental restrictions that produce a legally cognizable taking. Not every loss in value or regulatory burden qualifies, so the precise governmental action and affected property right must be examined.

How long does a condemnation matter take, and can the business continue using the property?

Timing depends on the governing procedure, the nature of the project, and whether possession and compensation are determined in separate stages. In some proceedings, the condemning authority may obtain title or possession before final compensation is resolved. Businesses therefore need both a litigation strategy and an operational plan addressing construction, relocation, access, customer communications, and continuity.

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