Reforming the Process
The eminent domain process needs to be more equitable and fair for landowners. Though some strides have been made in recent legislative sessions on eminent domain reform, the following problems remain within the condemnation process:
Lack of Bonding– Some condemning entities have claimed bankruptcy, denying landowners payment or just compensation for the taking of their land.
Solution: At the end of a condemnation legal proceeding, either the jury award should be paid or a bond in the amount of a jury award should be obtained from a condemnor to guarantee payment to the prevailing landowner.
Bona Fide Offer – The law requires that a condemnor give a landowner a “bona fide” offer, though there are no requirements of what that offer should specify or include.
Solution: To ensure a landowner’s property rights are protected, a bona fide offer should specify all uses and restrictions for the condemned property. The offer should include terms by which the condemnor will abide throughout the covenant of the property, no matter who owns the property in the future.
Appraisal Submissions – During an initial and final offer, a condemnor is required to submit an appraisal to a landowner. However due to a loophole in the law, a condemning entity is allowed to submit an updated appraisal immediately before a Special Commissioners hearing, while a landowner is required to submit an appraisal at least three days before.
Solution: The loophole in the law should be closed. The rules should apply equally to both parties, with final appraisals submitted no later than three days before a Special Commissioners hearing.
Easement Valuations – Currently, a landowner is not allowed to bring in evidence of freely negotiated transactions on comparable easements into the process for assessing damages.
Solution: Evidence of the price paid for privately negotiated transactions should be admissible into condemnation proceedings.
Possession and Use Agreements – At times, landowners have found that condemnors have violated the provisions outlined in possession and use agreements regarding the access and use of their land.
Solution: The provisions outlined within a possession and use agreement need to be enforceable. If those provisions are not honored, a landowner should be allowed to recover damages from a condemnor who violates those provisions outlined within that possession and use agreement.
Property Taxes – Landowners are now required to pay property taxes on an easement or condemned property when transferring ownership through a possession and use agreement.
Solution: Landowners should not be responsible for property taxes on condemned land.
On the Legislation page of this website, one can see the reforms pursued during the last Texas legislative session. Some of these reforms, and some new ones, will undoubtedly be pursued during the next session.