Eminent Domain in South Carolina: The Property Owner’s Guide

South Carolina gives property owners two things most states do not: a real choice about who decides value, and a fee shifting statute with a workable definition of winning. It also gives you a thirty day clock that starts the day you are served and a fifteen day clock that starts the day judgment is entered. Both are short enough to lose a case that was otherwise strong.

The law that governs takings in South Carolina

The Eminent Domain Procedure Act, codified at S.C. Code Title 28, Chapter 2, is the exclusive procedure for condemnation in South Carolina. It replaced a patchwork of agency specific statutes and applies to the Department of Transportation, counties, municipalities, utilities, and every other condemnor in the state.

The constitutional layer sits on top of it. Article I, Section 13 of the South Carolina Constitution was amended by referendum in November 2006 in direct response to Kelo v. New London. It provides that private property must not be condemned for any purpose or benefit, including economic development, unless the condemnation is for public use. The amendment preserved a blight exception, but narrowed it: the General Assembly may authorize condemnation only of property that constitutes a danger to the safety and health of the community by reason of lack of ventilation, light, and sanitary facilities, dilapidation, deleterious land use, or a combination of those factors.

Who can take property in South Carolina

The South Carolina Department of Transportation is the most frequent condemnor. Counties and municipalities condemn for roads, drainage, water, and sewer. Special purpose districts, public service districts, school districts, and the South Carolina Public Service Authority hold condemnation authority. Investor owned utilities, pipeline companies, and railroads condemn easements under their own enabling statutes, using the Chapter 2 procedure.

Whoever the condemnor is, Chapter 2 governs how it must proceed, which means the notice, tender, election, and fee provisions described below apply the same way whether you are dealing with the state highway department or a private pipeline company.

The condemnation process in South Carolina, step by step

The condemnor first determines the amount it considers just compensation under § 28-2-70(A). That determination is normally supported by an appraisal.

It then serves a Condemnation Notice. Section 28-2-280 requires the notice to be captioned CONDEMNATION NOTICE, TENDER OF PAYMENT, and where applicable AND NOTICE TO APPOINT APPRAISER. The amount stated in the notice constitutes a tender of that amount to you.

You have thirty days after service to give the condemnor written notice either that you reject the amount tendered, or that you accept it and will execute the instruments necessary to convey the property described. Section 28-2-220 makes silence a rejection, so an owner who does nothing has not forfeited anything, but an owner who wants to accept must say so in writing within the window.

The same section is where you elect between a trial and an appraisal panel. A trial means a jury decides just compensation in the circuit court. An appraisal panel means a three member panel decides it, which is faster and cheaper but produces a different kind of record. The choice is strategic and depends on the property, the disparity between the appraisals, and how a local jury is likely to view the project.

If you reject or do not respond within thirty days, the condemnor may file the Condemnation Notice with the clerk of court and deposit the amount of just compensation stated in the notice, under § 28-2-230. Section 28-2-240 governs how the case proceeds by way of trial after a rejection. Section 28-2-470 provides the separate proceeding for challenging the condemnor’s right to condemn at all.

Possession and deposits

South Carolina is a quick take state in practical effect. Under § 28-2-230, once the condemnor files the Condemnation Notice with the clerk of court and deposits the amount of just compensation it stated, it has the right to take possession. The statute also addresses filing fees, notice of filing, and abandonment of the action.

You may generally withdraw the deposited funds while the valuation dispute continues, and doing so does not concede that the amount is adequate. It does have consequences worth discussing with counsel first, particularly if you also intend to challenge the right to take under § 28-2-470.

Because possession follows the deposit, an owner who wants to contest the taking itself needs to move quickly rather than waiting for the valuation phase.

What just compensation includes in South Carolina

Just compensation in South Carolina is the fair market value of the property taken. In a partial taking the owner is entitled to the value of the part taken plus any damage to the remainder caused by the taking and the construction of the project, offset by special benefits to the remainder where the law allows.

Highest and best use governs the valuation. A tract carrying commercial zoning is valued as commercial land even if it currently holds a house, and a tract with a realistic prospect of rezoning may be valued with that prospect factored in. The condemnor’s appraisal frequently values property at its current use, and closing that gap is where most South Carolina condemnation cases are won.

South Carolina does not treat lost business profits or business goodwill as a separate compensable element of just compensation. What a business recovers flows from the real estate, from fixtures and equipment that have become part of the realty, and from relocation benefits administered outside the condemnation case.

Relocation assistance and moving costs

Projects that receive federal funding, which includes most significant South Carolina Department of Transportation work, carry relocation assistance under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act. That covers moving expenses, replacement housing payments for displaced residents, and reestablishment expenses for displaced businesses.

These benefits are separate from just compensation. They are not decided by the jury or the appraisal panel, and they are not included in the tender stated in the Condemnation Notice. They must be claimed and documented through the agency, and a settlement of the condemnation case does not by itself resolve them.

Deadlines that protect your rights in South Carolina

Thirty days from service of the Condemnation Notice to accept or reject the tender in writing, and to make your election between a trial and an appraisal panel, under § 28-2-220.

Fifteen days after entry of the judgment to serve and file your application for litigation expenses under § 28-2-510. This is the deadline owners lose most often. A landowner who wins at trial and then waits a month to think about fees has given up the recovery.

The application itself has content requirements. It must show that the landowner prevailed, state the amount sought, and include an itemized statement from each attorney or expert who represented or appeared for the landowner, stating the fee charged, the basis for it, the actual time expended, and all actual expenses for which recovery is sought.

How to fight a taking in South Carolina

South Carolina gives owners a fee shifting rule with a definition of winning that is unusually favorable. Under § 28-2-510 a landowner who prevails at trial may recover reasonable litigation expenses, which include attorney fees, expert fees, deposition costs, and other related trial expenses. The statute defines prevailing by comparing the award to the two sides’ valuations: the just compensation awarded, exclusive of interest, must be at least as close to the highest valuation attested to at trial on behalf of the landowner as it is to the highest valuation attested to at the beginning of trial on behalf of the condemnor.

That formulation means you do not have to match your own appraiser to recover fees. You have to land on your side of the midpoint. It changes the calculus for owners with a genuine valuation dispute, because a credible appraisal moves both the likely award and the likelihood of a fee award.

Separately, if the condemnor abandons or withdraws the condemnation action in the manner authorized by Chapter 2, the condemnee is entitled to reasonable attorney fees, litigation expenses, and costs as determined by the court. An owner who successfully makes a project uneconomic is not left holding the bill.

On the right to take, § 28-2-470 provides the vehicle, and the 2006 constitutional amendment provides the substance. A condemnation whose real purpose is economic development, or one that rests on a blight designation for property that does not endanger health or safety, is vulnerable in a way it was not before 2006.

Before you sign anything

Read the caption of what you were served. If it says CONDEMNATION NOTICE, TENDER OF PAYMENT, your thirty day clock is running. Ask for the appraisal behind the tendered figure. Get your own appraisal before you decide between a trial and an appraisal panel, because that decision is hard to revisit and the fee shifting test under § 28-2-510 is measured against trial testimony.

And put the fifteen day fee application deadline in writing the day judgment is entered. Everything you gained at trial can be reduced by fees you were entitled to recover and did not ask for in time.

Frequently asked questions

How long do I have to respond to a South Carolina Condemnation Notice?

Thirty days after service. Under S.C. Code § 28-2-220 you must give the condemnor written notice that you either reject the amount tendered or accept it and agree to execute the instruments necessary to convey the property. A failure to respond within the thirty days counts as a rejection, so you do not lose your right to contest value by staying silent, but you do need to act in writing if you intend to accept.

Can I choose a jury instead of an appraisal panel in South Carolina?

Yes. Section 28-2-220 gives the landowner an election between proceeding by trial, where a jury in the circuit court determines just compensation, and proceeding before an appraisal panel. A panel is generally faster and less expensive, while a trial produces a fuller record and is the route measured by the litigation expense statute. The choice should be made with counsel after you have your own appraisal.

When does South Carolina make the condemnor pay my attorney fees?

Under § 28-2-510, a landowner who prevails at trial may recover reasonable litigation expenses, including attorney fees, expert fees, and deposition costs. A landowner prevails when the just compensation awarded, excluding interest, is at least as close to the highest valuation attested to at trial for the landowner as it is to the highest valuation attested to at the start of trial for the condemnor. Fees are also recoverable if the condemnor abandons or withdraws the action.

Is there a deadline to ask for litigation expenses in South Carolina?

Yes, and it is short. Section 28-2-510 requires the landowner to serve on the condemnor and file with the clerk of court an application for litigation expenses within fifteen days after entry of the judgment. The application must show that the landowner prevailed, state the amount sought, and attach an itemized statement from each attorney or expert setting out the fee charged, its basis, the actual time expended, and the actual expenses claimed.

Can South Carolina take my property for economic development?

No. South Carolina voters approved a constitutional amendment in November 2006 providing that private property must not be condemned for any purpose or benefit, including economic development, unless the condemnation is for public use. The amendment left a narrow blight exception, limited to property that constitutes a danger to the safety and health of the community because of factors such as lack of ventilation, light, and sanitary facilities, or dilapidation.