<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by
[email protected]:
THE LEGAL DESCRIPYION OF OUR PROPERTY SAYS THAT WE OWN TO THE CENTER LINE OF THE ROAD. wE LIVE IN A RURAL ESTATE COMMUNITY, WHERE EVERY ONE HAS A PROPANE TANK. THE GAS COMPANY JUST NOTIFIED US THAT THEY WANT US TO SIGN A QUICK CLAIM FOR A DOLLAR, SO THE NEW ESTATE HOMES NEXT TO US CAN GET GAS. tHE QUICK CLAIM WOULD BE FOR THE FRONT 32 FEET OF THE PROPERTY. DO WE HAVE TO SIGN THIS? DO WE HAVE AN RECOURSE. I THINK THE GOVERNMENT HAS USE OF THE FIRST 32 FEET OF THE PROPERTY<HR></BLOCKQUOTE>
My response:
Here is what the Gas Company is saying to you (and you should see an atttorney right after you read this!!):
The Gas Company is saying:
"We want to make this easy for you, and even easier for us. We want your property - plain and simple. We want it, despite its value because we have business to conduct, and profits to make. So, we want your property. If we don't get your property for $1.00 and a signed "Quit Claim Deed," we will petition the local government to take your property, and then they can deed the same back to us. So, it's your choice . . . we can take the short route and pay you $1.00, or we can take the long route (and petition the Government). . . but, we want, and will get your property, at the very least, through eminent domain proceedings."
What is eminent domain and when can it be used?
"Eminent domain"
Eminent domain (also called "condemnation") is the power of government agencies to acquire property for "public use" so long as the government pays "just compensation." Recognized public uses for which the power of eminent domain may be used include, among other things, schools, parks, roads, highways, subways, fire and police stations, public buildings, and the elimination of blight through redevelopment. A key attribute of eminent domain is that the government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.
Can I challenge the government's right to acquire my property?
Even though the vast majority of government agencies possess the power of eminent domain, on occasion, a successful challenge to the government's right to take a particular property for a particular project can be made. You should be cautioned, however, that such challenges are the exception, not the rule, and usually result only in a delay, rather than outright prevention of the government's right to take.
Typical challenges to the right to take are for failure of the government to follow the proper procedural steps towards eminent domain. If the government fails to follow the proper procedures, a right to take challenge is sometimes possible. Again, however, it must be remembered that the circumstances allowing a successful challenge to the right to take are rare. Each case must be evaluated on its own facts and experienced eminent domain counsel should be consulted. Seeking compensation for the taking, rather than challenging the government's right to take, will be the property owner's usual remedy.
What is a "public use"?
One possible challenge to the government's right to take can be raised where the project for which the property is being taken is not for a "public use." The Fifth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution allow private property to be taken by eminent domain only for a "public use."
The term "public use" has been interpreted very broadly by the Courts. The project need not be actually open to the public to constitute a public use. Instead, generally only a public benefit is required. Elimination of blight through redevelopment projects, for example, is a public benefit which courts have held satisfies the "public use" requirement of the Federal and State Constitutions. This is true even though the property will typically be transferred to a private redeveloper and may never be open to the general public. It usually doesn't matter if the redeveloper may be doing nothing more than building a new mall or a complex of movie theaters.
What if I am successful in challenging the government's right to take my property?
In those instances where the property owner successfully challenges the government's right to acquire his or her property by eminent domain, California law provides that the eminent domain proceeding may be dismissed. The property owner may be entitled to recover his or her litigation expenses including attorneys' and appraisers' fees incurred in the action.
Even where a successful challenge to the right to take is made, the court has the authority under some circumstances to allow the government agency to correct any procedural mistakes and proceed with the acquisition. Moreover, even if the action is dismissed outright, the government agency may start the process all over again; prevailing on the right to take challenge does not preclude the government from acquiring the property for all time.
If I am unsuccessful in challenging the right to take, will I have any liability for the government's costs?
No. Where a right to take challenge is raised but is unsuccessful, the government may proceed with the acquisition, and the property owner will not be liable for the government's costs.
What is "just compensation"?
The Fifth Amendment of the United States Constitution provides that private property may not be taken for a public use without payment of "just compensation." Similarly, article I section 19 of the California Constitution provides that private property may not be taken or damaged by the government unless it pays "just compensation."
The items for which a property/business owner may generally attempt to seek just compensation are (1) real property, (2) improvements pertaining to realty (sometimes referred to as fixtures and equipment), and (3) business goodwill. Just compensation for these items is generally the "fair market value" of the item as of a particular date. Each of these items is discussed in further detail in the questions and answers which follow.
Under the California Constitution, property and business owners are entitled to have just compensation determined by a jury.
Who is entitled to just compensation?
The constitutional requirement of just compensation applies not just to the record owner of the property, but to anyone whose property interest is acquired by the government agency. For example, a business tenant on property to be acquired by eminent domain may be entitled to compensation for the value of his leasehold interest, the value of his fixtures and equipment, and the loss of business goodwill suffered as a result of the government agency's acquisition.
Many leases include a "condemnation clause" which spells out the entitlement to compensation as between the owner and tenant. These clauses generally specify whether the tenant is, or is not, entitled to any "leasehold bonus value" -- that is, the value of the tenant's leasehold interest. Courts have virtually uniformly held such condemnation clauses to be enforceable. Even under these provisions, however, the tenant is still often entitled to the value of his own fixtures and equipment and business goodwill.
What is "fair market value"?
The government is required to pay the "fair market value" of the property it acquires by eminent domain. California's Eminent Domain Law generally defines fair market value as:
"The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by the seller, being willing to sell but under no particular or urgent necessity for doing, nor obliged to sell, and a buyer, being ready, willing and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available."
Evidence of fair market value is generally presented to the jury by real estate appraisers retaine
