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Ten Questions A Landowner Should Ask of The Appraiser in an Eminent Domain Proceeding

Written by Posted On Friday, 28 August 2020 17:17

The right to own property is the foundation of our free society and, as such, a property owner is entitled to the greatest protections and safeguards under the law.

When government bodies threaten a landowner’s rights by seeking to take their private property by the power of eminent domain, the landowner is well advised to not only retain a competent lawyer, but a competent appraiser as well.

In cases where the valuation positions of the condemning entity and the private landowner differ sharply, the landowner’s appraisal becomes an essential element in the case upon which the landowner’s compensation claims rest. As such, the appraisal must be well written, understandable, supportable, and above all, well-founded and documented.

To make sure the appraisal can withstand the level of scrutiny that it will be subjected to, choosing the right appraiser for the assignment is key. Below are several questions that every landowner or landowner’s attorney involved in an eminent domain taking should ask when deciding who to retain as an appraiser:

1. Does the appraiser have sufficient experience in doing eminent domain appraisals?

Eminent domain appraisals require a certain degree of specialized knowledge regarding laws, rules and case authorities that not all appraisers are aware of or familiar with. Knowing what these special requirements are and incorporating them into the appraisal can make the difference between an appraisal that will be relied on to support a valuation position, and one that may be rejected.

2. Is the appraiser qualified to do the appraisal assignment, particularly in situations involving the need for specialized knowledge, experience in a particular market, or unique properties and property rights? 

All types of property and property rights can be the subject of eminent domain proceedings. Thus, it becomes important that the appraiser’s experience aligns with the nature and type of property at issue, whether it be an office building, a warehouse or factory, a residential subdivision, a leased fee interest, a parking lot, or a private airport landing strip.

3. How well suited is the appraiser to the appraisal assignment? 

Does the appraisal assignment require a certain amount of thinking outside the box? Attention to detail? In-depth market research and investigative skills? Every appraisal assignment is unique and different, and some will require certain specialized skills and talents that are not universally found in all appraisers.

4. If court testimony becomes necessary, how effective will the appraiser be as an expert witness and how well will the appraiser do under cross-examination?

Has the appraiser ever testified in an eminent domain proceeding before? Eminent domain cases differ from typical appraisal assignments because they may require that the appraiser defend his or her valuation conclusion in a court of law, where the appraiser will be subject to the cross-examination of an opposing lawyer.

5. Are there any issues which are likely to raise serious questions about the appraiser's credibility, impartiality, independence?

The credibility and independence of the appraiser is key and thus must be beyond meaningful attack or criticism.

6. How busy is the appraiser? Is the appraiser likely to have the time to complete the assignment or provide expert testimony at trial, if necessary?

Eminent domain appraisals generally require more time and thought to complete than many other appraisal assignments. This is due to the number of requirements that must be met to make sure the appraisal can be relied on as a basis for determining value in a eminent domain condemnation case.

Moreover, eminent domain proceedings in general can take several months to years to complete; depending upon the complexities of the case and many other factors. Because not all appraisers have the time and stamina to see the appraisal assignment through to the end of the eminent domain process, questions concerning the appraiser’s time commitment to the assignment become important.

7. How interested and committed is the appraiser in doing the appraisal assignment? 

A keen willingness to perform the assignment, interest and even fascination with the valuation issues to be analyzed, as well as a strong commitment to getting it right will go a long way in obtaining a good appraisal product.

8. If the case involves a team of experts, how well will the appraiser work with other members of the team? 

Reaching a valuation conclusion in an eminent domain case can involve many experts in addition to the appraiser.

Depending upon the nature of the property and the range of valuation and damage issues to be evaluated, experts could include persons experienced in mineral valuations, water rights, access and transportation issues, market feasibility and many other disciplines and fields of study. It therefore becomes important how well and effective the appraiser can work and interact with other professionals in arriving at the final valuation conclusion.

9. How much will the appraiser charge to do the assignment and how likely is it that the appraisal fee will be reimbursed or recovered? 

Unfortunately, not every state reimburses a landowner for the cost of an appraisal deemed necessary to support the landowner’s compensation claims in an eminent domain case.

This may result in the cost of the appraisal being a deduction from the final just compensation received by the landowner. Under such circumstances, the fee charged by the appraiser to complete the appraisal becomes an important element to consider and evaluate.

10. How well does the landowner or the landowner’s attorney know the appraiser? 

In many cases the landowner’s attorney and the appraiser will know each other and, most likely, have worked together before on other eminent domain cases. However, in situations where the appraiser has not worked with the lawyer or landowner before, it is important that the appraiser be recommended by persons that the lawyer or landowner trusts.

Appraisers can play a crucial role in any fight against a condemnation notice. Property owners are well-advised to arm themselves with one of the most essential tools in the protection and defense of their valuable property rights: a strong eminent domain appraisal prepared by an experienced and qualified appraiser.

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Lauren Alexander

Lauren Alexander is the Content Marketing Strategist for Owners' Counsel of America, a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the US. OCA’s members are leading condemnation lawyers that represent landowners against local and state governments, transportation departments, utilities, energy companies, redevelopment authorities, the Federal government, and any other agency that may be armed with the power of eminent domain.

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