Eminent Domain Procedure In South Carolina
In South Carolina, the government has the power to acquire your private property for a “public purpose”. However, it must follow certain procedures and compensate you fairly.
If you have been contacted by the government and advised that it intends to take your property, it can be a frightening experience. While the South Carolina eminent domain laws do afford you some protection, it is important to understand the process. Here is a brief outline of the different steps in an eminent domain case, also referred to as a condemnation case.
Right to Survey
After giving the landowner reasonable notice, the government has the authority to enter upon the landowner’s property for the limited purposes of making a survey, determining the location of proposed improvements, and making an appraisal. If the landowner fails to give the government permission to enter the property, the circuit court may issue an ex parte order to enforce the government’s right to survey.
Government Appraisal and Offer
In an eminent domain case in South Carolina, the government must have an appraisal made of the landowner’s property and make an offer based upon the appraisal. Also, the government must make the appraisal available to the landowner, and it is required to make a “reasonable and diligent” effort to negotiate a settlement regarding the amount of compensation.
Mortgage Penalties and Taxes
The government must pay or reimburse the landowner for any prepayment penalties for mortgages that arise as a result of the taking in an eminent domain case in South Carolina. The government is given a credit against taxes due during the year in which it acquires the landowner’s property, but the government also has the responsibility of paying taxes on the property for that year.
Eminent Domain Action
In South Carolina, the government has a right to bring an action under eminent domain to acquire real property necessary for a “public purpose.” Before initiating such an action, the government must choose to proceed either by way of trial or by way of an appraisal panel. However, if it chooses the appraisal panel route, either side may appeal that decision to circuit court for a jury trial.
Filing of a Condemnation Notice
If the government and the landowner are unable to reach a settlement, the government may file a condemnation notice and deposit its determination of just compensation with the clerk of court. The government must then serve written notice of its filing on the landowner. If the government has deposited the amount of its view of just compensation with the clerk of court, it is permitted to then take possession of the landowner’s property.
Landowner’s Right to Withdraw Deposit
In a South Carolina eminent domain case, the landowner has the right to withdraw either 50% or 100% (depending upon the source of funds) of the monies deposited by the government. Following such withdrawal, the landowner may not challenge the taking of the property, but may claim entitlement to additional monies as just compensation.
Right to Jury Trial and Priority
Unless both the government and the landowner affirmatively reject a jury trial, the eminent domain trial is conducted before a judge and jury. Furthermore, after 60 days have passed, either side may request that the case be given priority over all other civil cases.
Retention of Experts
Normally, the key issue in an eminent domain case in South Carolina is the amount of just compensation. The government will have a real estate appraiser and, in nearly all cases, the landowner will need one as well. There may be other types of experts which are needed, such as an engineer, a surveyor, or a land use planner, but that depends on the specifics of the case. It is advisable to retain experts at an early stage in the case.
In South Carolina, the eminent domain case focuses on the amount of just compensation. The landowner is entitled to be compensated for the value of the property taken, plus any damage to the remaining land, but the government may receive credit for certain statutory benefits. The date of valuation for determining just compensation is the date of the filing of the condemnation notice.
Prior to trial, the parties will engage in discovery, similar to any other civil action. At a minimum, interrogatories (written questions), requests to produce (documents), and depositions (sworn testimony outside of court) are likely. In certain actions, additional discovery will also be utilized.
Actions Challenging the Right to Condemn
In certain circumstances, a landowner may challenge the government’s right to condemn, which is initiated by way of a separate proceeding. The action must be commenced within 30 days after service of the condemnation notice on the landowner. All eminent domain proceedings in South Carolina are automatically stayed until the disposition of this action. However, no issues involving the government’s right to condemn may be heard in the condemnation trial itself.
In addition to negotiations which occur prior to the filing of a condemnation notice, the parties may settle the case at any time – whether before trial, during trial, or on appeal.
Eminent Domain Trial
If the parties are unable to resolve the issue of just compensation prior to trial, the amount of just compensation will be determined in a civil jury trial. One idiosyncrasy in an eminent domain trial in South Carolina is that the first witness at any trial is the government’s witness, who testifies concerning the property being taken and the purpose for the acquisition. Thereafter, the landowner presents its case, after which the government presents its case.
The government must pay interest at the rate of 8% per annum on the amount of just compensation awarded to the landowner. The interest begins when the condemnation notice is filed and continues through the date of verdict.
Attorney’s Fees, Costs and Litigation Expenses
If a landowner “prevails” against the government in a condemnation case, in addition to just compensation, the landowner may recover its reasonable litigation expenses. These expenses include attorney fees, expert fees, deposition costs, and other related trial expenses. “Prevailing” in a South Carolina eminent domain case means that the just compensation awarded, exclusive of interest, is “at least as close to the highest valuation of the property that is attested to at trial on behalf of the landowner, as it is to the highest valuation of property that it is attested to at the beginning of trial on behalf of the condemnor.” This award is determined by the court after an application is made within 15 days of the entry of judgment.
Post Trial and Appeal
Like any other civil action in South Carolina, after judgment is entered on the verdict in an eminent domain case, one or both sides frequently make post trial motions, including motions for a new trial. If either party is dissatisfied after those post trial motions, an appeal may be filed. Such appeals would normally go to the South Carolina Court of Appeals, with the possibility of a petition for writ of certiorari to the South Carolina Supreme Court thereafter. Whereas the trial itself in a condemnation case normally occurs within one year of the filing of the notice of condemnation, appeals can frequently take several years to be resolved.
If you’ve received notice that the government intends to take your property, contact our attorneys. We have the expertise in these types of cases to help you protect your rights.