Condemnation Process in North Carolina:
Typically the process starts with negotiations between the Condemnor wanting to take your property by eminent domain.
If negotiations reach an impasse, the eminent domain condemnor may start an eminent domain lawsuit.
There are three main condemnors, North Carolina (NCDOT), Local Public Condemnors (municipalities), and Private Company Condemnors (Duke Power, railroads).
Under NCGS 136-103
Overview Of The Process Of Taking Private Property:
o Chapter 40A – applies to PRIVATE CONDEMNORS. Reference N.C. Gen. Stat. 40A-3(a). Articles 1, 2, and 4 (this includes a special proceeding hearing before the clerk of superior court)
Under Article 2, the condemnor makes a petition for the appointment of commissioners to appraise the property and for the clerk to determine the amount of damages to be awarded to the property owner.
The petition must allege: a description of the real estate being condemned, incorporation status of the condemning private petitioner (eg. Duke Power, Railroad company), statement of the condemnor’s public business, a statement regarding the specific use of the property being condemned, allegations whether the owner may be permitted to remove improvements affixed to the land being taken, the names and residences of the landowner, and statements describing any liens (mortgages) and encumbrances on the land.
If the taker is a railroad, a map must be filed showing the route (see NCGS 62-192)
The landowners have to be served this petition via service of process rules.
o Chapter 40A – applies to local PUBLIC CONDEMNORS using Eminent Domain. See N.C. Gen. Stat. 40A-3(b). Articles 1, 3, and 4
o Chapter 136 – NORTH CAROLINA and its agencies. North Carolina Department of Transportation and other state agencies. See N.C. Gen Stat. § 136-19. Article 9
Note: Public condemnors, like the City of Raleigh, are sometimes using Chapter 136 instead of Chapter 40A.
• There is no Requirement of an offer by the Eminent Domain Condemnor prior to taking under Chapter 40A, but is required under Chapter 136. In general, the governmental entity will usually notify the landowner and attempt to purchase the property by negotiation. A letter is sent to the property owner to start the process.
• Rights of Condemnor to enter property prior to condemnation.
General Rule: Such entry is not a taking or a trespass but landowner is entitled to damages caused by the entry. See N.C. Gen. Stat. §§40A-11 and 136-0120.
• Legal Process of the taking under Chapter 136 (there are somewhat different but similar procedures under Chapter 40A):
o Complaint and Declaration of Taking – title vests in Condemnor unless prior injunctive relief granted.
o Deposit of Estimated Just Compensation with Clerk.
o Answer within (120 days of service under § 40A) one year under §136.
o Request commissioners before clerk or not is one issue to decide with your attorney.
o Application for Deposit: A landowner may waive right to contest public use if the landowner “withdraws the deposit.”
o Discovery – North Carolina Rules of Civil Procedure allow interrogatories (written discovery questions),requests for document productions & depositions. The Public Records Act may also be available. See McCormick v Hanson, 2004 Lexis 1003 (N.C. App. 2004).
o Section 136-108 Hearings. “All other issues” besides just compensation are raised by the pleadings before a Judge.
o Mediations are required in Superior Court cases. Mediation is a negotiation session involving the landowners, the condemnor, their respective attorneys, and a neutral attorney who assists in trying to settle the dispute.
o Motions in Limine before the trial judge. Motions in Limine are to determine what evidence is allowed, excluded, or limited in testimony before the court.
o Trial-Opinions of fair market value on the date of the taking. – The Burden of Proof on landowner to show the value is more than the amount tendered by the condemnor.
o Motions to exclude experts who are tendered. See also Motions in Limine.
o Motions to exclude comparable properties.
o Jury Verdict.
o Post-trial Motions.
o Parties can appeal to North Carolina Court of Appeals, North Carolina Supreme Court, and United States Supreme Court.
o Interest on Judgment – 8% from date property taken on amounts in excess of the amount tendered at the commencement of the litigation.
o Certain costs can be taxed against the condemnor at the discretion of the Court. Attorney’s fees are not provided in § 40A-8(a) and § 136-119 and cannot be taxed as costs. Expert Witness fees such as appraiser and engineering costs may be allowable as cost if recognized as an expert. See N.C. Gen Stat. § 40A-8. But see DOT v. Charlotte Area Manufactured Housing, 160 N.C. App. 461 (2003) (appraisals not allowed as costs).