Blogs

The Eminent Domain

10.09.14

Everybody wants good streets and highways and everybody wants their homes and businesses to stay high and dry and everybody wants a policeman to be nearby if and when needed and…well, you get the picture. We all want the trappings of a civilized society to thrive and be available to us as citizens, taxpayers and security-conscious human beings. And in Texas, we want oil & gas pipelines on property condemned by private companies for the common good. To accomplish these goals, we rightfully turn to our government and its denizens: elected officials, public servants in general, and even pipeline companies granted the power of eminent domain; and expect them to provide aids to transportation (of people or fuel), law enforcement, national security, health care, recreation, etc. as we engage in our pursuit of happiness.

But…here it comes…wait for it…NOT in my backyard. Preferably, not even in or near my neighborhood. And, certainly, not at the cost of damaging or even losing my business that my wife and I worked a lifetime to build. So, that detention pond to control flooding, or that highway that needs to be expanded from four lanes to ten lanes, or that police annex to be located across the street, or that 36-inch crude oil pipeline from Canada, or even that new park that is going to steal my one-of-a-kind view of the bubbling brook running across my property…well, they simply need to be relocated elsewhere.

So, what do you do when the government or a company needs your property in order to promote the common good of, perhaps, millions of people?

Why should you lose your house or your business for the benefit of countless strangers?

In this post we will discuss the answer(s) to this age-old question that has been around since feudal times when everything belonged to the King and the needs of the realm always trumped individual indices of property ownership.

Let's start with your home…your castle if you will. You have lived in it for decades. Your children grew up there. There are more memories in that home than you can count and (most of them) are precious. You know and like and treasure your neighbors and the backyard barbeques and their kids who grew up with your kids. You know your neighborhood's peculiarities and the nearby merchants you trade with. In other words, your home, your neighbors, the things in and around your neighborhood are…familiar. And familiarity has value to you. Lots of value. Familiarity, over time, leads to comfort. Comfort has a great deal of value. The memories cannot be purchased at any price…again they have extreme, irreplaceable value to you. That little prepositional phrase 'to you' and the accompanying possessive 'your(s)' count for absolutely zero when you have to come to grips with the fact that you are about to sacrifice your little piece of heaven on the altar of the common good. Because, you see, Texas law says you are entitled to adequate compensation…which, counter-intuitively, is only defined in terms of market value. An appraiser will determine what the going price is for a house (not a home) similar to yours. Adequate, therefore, does not really mean adequate. Adequacy to you would mean much more than the value of a stranger's house that happens to have the same square footage as yours. Seldom is the amount awarded to you as compensation enough for you to start over and buy an equivalent home in the same neighborhood, to say nothing about the fact that your memories and the unique affordability of your paid-for home has no value in the world of government appraisers and lawyers. Loss of consortium remains a legally elusive element of damages when it comes to determining adequate compensation in Texas.

Maybe with a potentially new crop of legislators this next election cycle, Texas condemnation law will be changed to accommodate the realities of value when it comes to the loss of your home(stead). Such a change would add more adequacy to the current requirement of adequate compensation.

In the meantime, when faced with the loss of your home, make sure you personalize your loss to the maximum extent allowed under current law because, ultimately, if need be, a jury of your peers will determine the amount of adequate compensation due to you for personally shouldering the public load and, if they are true peers, you might just be able to recapture some of your lost value.

The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.

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