Land Condemnation

With the tremendous expansion of southeastern North Carolina comes the need for new roadways to serve the booming population. Before it can begin construction on a new highway project, the North Carolina Department of Transportation must first acquire the right-of-way for the new road. This typically requires “condemning” or “taking” private property within the expected path of the new roadway. While other public entities, such as cities, counties, and local school boards, have this right of “eminent domain,” it is most frequently exercised in conjunction with new roadway projects.

“Condemnation” means that the NCDOT will take whatever portion of your property it needs for the highway project. As a general rule, you cannot prevent the NCDOT from acquiring all or part of your property for a public purpose project. You are, however, entitled to “just compensation” for this taking.

The effect of a public roadway project on your property depends on the proximity of your property to the roadway. The new right-of-way may just cross the corner of your property or it may cut right through the middle of your house or business. Even if the NCDOT acquires only a small portion of your property, your damages can still be significant if the loss of that small portion has a significant effect on the use of the remainder of the property. For example, a business with limited parking could be greatly affected by losing part of its parking lot. Do not assume that your damages are minimal just because the NCDOT takes only a small portion of your property.

When the NCDOT commences a civil action for the purpose of acquiring part of your property, it is required to deposit with the court the amount of money it believes is “just compensation” for the taking of your property. Obviously, it benefits the NCDOT to acquire your property as cheaply as possible. The law recognizes this and a procedure exists for you to challenge the NCDOT’s proposed “just compensation.” You are not required to accept what the NCDOT says is “just compensation” for the taking of your property. Once you are served with a NCDOT complaint and declaration of taking, you have a limited time to file an answer challenging the NCDOT’s proposed amount of “just compensation.”

By law, when only a part of a piece of property is taken, the measure of “just compensation” is the difference between the fair market value of the entire property immediately prior to the taking and the fair market value of the remainder of the tract immediately after the taking, less any general or specific benefits resulting to the property owner. When an entire piece of property is taken, the measure of damages is the fair market value of the property at the time of the taking.

If you take no action to challenge the NCDOT’s measure of “just compensation,” then you will only receive what the NCDOT believes to be the reduction in fair market value of your property. Without at least investigating the legitimacy of the NCDOT’s estimate, you risk losing a significant amount of damages to which you are entitled under the law. The law has provided property owners with a mechanism to challenge low-ball, insufficient estimates of “just compensation” by the NCDOT, but the law cannot protect you unless you take advantage of it.

If your property is the subject of a NCDOT taking, Hodges Coxe Potter & Phillips, LLP can help ensure that your rights are protected. We will be glad to meet with you and discuss the condemnation process and the theories of “just compensation” in these types of cases. The earlier you get prepared for an inevitable taking of your property, the better position you will be in to evaluate the NCDOT’s estimate and determine if it would be in your best interest to challenge the NCDOT’s claimed “just compensation.” Whatever you do, do not let the NCDOT take advantage of you.


Practicing in this Field

Bradley A. Coxe

Partner, Attorney at Law

C. Wes Hodges, II

Partner, Attorney at Law

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Land Condemnation