Received an Eminent Domain Notice? First Steps Before You Sign

A notice of intent to acquire, a right of entry request, or an offer letter usually arrives long before any lawsuit. What you do in the first few weeks shapes the rest of the case. This guide explains what the documents mean, what the acquiring agency must give you, and what to check before you sign anything.

What you actually received

Acquisitions for federal projects, and for state and local projects that use federal money, follow the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and its governmentwide regulation at 49 CFR Part 24. Purely state or local acquisitions follow state law, although many states have adopted parallel requirements.

Early paperwork typically includes one or more of the following: a general information notice describing the project and your rights, a request for permission to enter and appraise, a written offer of just compensation with a summary statement of its basis, and later a notice to vacate. None of these documents is a court order. A condemnation case begins only when the agency files a petition in court.

First steps in the first week

Keep every envelope, letter, and email, and note the date each arrived. Write down the name and title of anyone who contacts you and what was said. Do not sign a right of entry, a waiver, a purchase agreement, or a deed until you understand what it gives up. Take dated photographs of the property, including access points, improvements, drainage, and anything the project may disturb.

Ask the agency in writing for the project description, the plan sheets showing what is being taken, the appraisal report, and the summary statement of the basis for the offer. Ask whether the project uses federal funds, because that answer determines which set of rules applies.

The appraisal and your right to attend

For federal and federally assisted acquisitions, the property must be appraised before negotiations begin, and the owner or the owner designated representative must be given an opportunity to accompany the appraiser during the inspection. A narrow waiver process exists for low value acquisitions. Attending matters because the appraiser sees the property once, and details such as a well, a septic field, mature timber, irrigation equipment, or an access easement are easy to miss.

The agency must establish an amount it believes is just compensation before negotiations begin, and that amount may not be less than its approved appraisal or waiver valuation of fair market value, taking into account allowable damages or benefits to any remaining property.

Reading the written offer

The offer must be in writing and must be accompanied by a written statement of, and summary of the basis for, the amount established as just compensation, including the amount offered. Read the allocation carefully. Ask which portion is for the land taken, which is for improvements, and which is for damages to the remainder.

Partial takings are where offers most often fall short. The Supreme Court held in United States v. Miller that where a tract is used and treated as a single entity it is considered as such in assessing compensation, so a partial taking must account for the relation of the part taken to the whole. Loss of access, an awkward remainder shape, proximity to the new use, and loss of the highest and best use of what is left can all carry value. See our guides on just compensation and the condemnation process.

Relocation assistance is separate

If you must move as a direct result of the acquisition, the Uniform Relocation Assistance Act provides advisory services, moving expense payments, and replacement housing payments. These benefits are additional to the just compensation paid for the real estate. Nothing in the purchase price is meant to cover them, and accepting the price does not waive them.

Deadlines and possession

No lawful occupant may be required to move without at least 90 days advance written notice of the earliest date by which the move may be required. The notice must either state a specific date or state that a further notice will give at least 30 days advance warning of the specific date. A shorter notice is allowed only in unusual circumstances, such as when continued occupancy would create a substantial danger to health or safety.

Possession works differently once a case is filed. Most federal condemnations are begun by filing a declaration of taking together with a deposit of estimated compensation, at which point title vests in the United States immediately and the owner claim converts to a claim for money, with interest owed on any shortfall. Procedure in federal court is governed by Rule 71.1 of the Federal Rules of Civil Procedure. State quick take procedures vary widely, and some states have none.

Common early mistakes

Signing a right of entry without limits on scope, duration, and restoration. Talking about value before you know what the appraisal says. Assuming the deadline in the letter is a legal deadline rather than the agency preference. Ignoring damages to the remainder because the offer only itemizes the land taken. Missing the window to challenge the right to take, which in many states is short and separate from the fight over money. Our guide on fighting a taking covers those challenges.

Frequently asked questions

Do I have to accept the first offer in an eminent domain case?

No. Under federal acquisition policy the agency must offer at least its approved appraisal of fair market value, but that figure is an opening position that you may negotiate or contest in court. Accepting and signing usually ends your ability to argue for a higher award.

Can I be present when the appraiser inspects my property?

Yes. For federal and federally assisted acquisitions, 42 U.S.C. 4651(2) and 49 CFR 24.102(c) give the owner or the owner’s representative an opportunity to accompany the appraiser during the inspection. Many states apply a similar rule.

Am I entitled to see how the offer was calculated?

Yes for federal and federally assisted projects. The agency must give you a written statement of, and a summary of the basis for, the amount it established as just compensation, and that statement must include the amount offered.

How much notice do I get before I have to move?

Under 49 CFR 24.203(c) no lawful occupant may be required to move without at least 90 days advance written notice of the earliest date by which the move may be required, subject to a narrow exception for health and safety emergencies.

Does the purchase price include moving costs?

Not usually. Relocation assistance under the Uniform Relocation Assistance Act is separate from and in addition to the just compensation paid for the property itself.

Sources

• 42 U.S.C. 4651, Uniform policy on real property acquisition practices (Office of the Law Revision Counsel)
• 49 CFR 24.102, Basic acquisition policies (eCFR)
• 49 CFR 24.203, Relocation notices (eCFR)
• 42 U.S.C. Chapter 61, Uniform Relocation Assistance and Real Property Acquisition Policies (Office of the Law Revision Counsel)
• 40 U.S.C. 3113 and 3114, federal condemnation and declaration of taking (Office of the Law Revision Counsel)
• Federal Rule of Civil Procedure 71.1, Condemning Real or Personal Property (Cornell LII)
• United States v. Miller, 317 U.S. 369 (1943)
• U.S. Department of Justice, Anatomy of a Condemnation Case