Rapid Transit Project May Call For Eminent Domain

Written by Posted On Tuesday, 15 May 2018 13:22
Question: I understand that our State government has plans to expand our rapid transit railway system and many of us are concerned that they will take our houses in order to complete the project. What is the law on this? Do they have the absolute right to do this? Joseph.

Answer: Joseph. You are referring to a concept called "eminent domain" -- also known as "condemnation". The short answer: if the taking of the property is for a "public use" -- such as road or a rail transit -- the government has the absolute right to take your house or even your business.

The Fifth Amendment to our Constitution reads, in part: "nor shall private property be taken for public use, without just compensation". And the Fourteenth Amendment applies that same concept to all States. That means that while you have very little chance to fight the taking, you can challenge the amount the government initially offers you. You have the right to a full jury trial to have the court determine what is "just compensation".

Although the process may differ from state to state, typically once the government makes a determination that it needs certain property for its "public use", it may actually hold hearings where the pros and cons are discussed. In fact, often you -- the effective homeowner -- may not even be aware of the facts until you get a formal notice of the taking. In many states, the government does what is known as a "quick take" -- they immediately record the title to the property in the name of the government.

What is a public use? A 2005 Supreme Court opinion muddied the waters somewhat when it ruled that the City of New London, Connecticut, could condemn private property and give it to a private developer to be used a part of a comprehensive redevelopment plan. According to the Court, "the governmental taking of property from one private owner to give to another in furtherance of economic development constitutes a permissible ‘public use' under the Fifth Amendment." Kelo v City of New London.

As a result, many States have reacted to the high court's decision by enacting legislation that prohibits a state from taking property and giving it to another private land owner, even for example in the case of job creation.

I suggest that you and your neighbors immediately retain experienced local counsel so that you will be prepared in case that condemnation notice comes your way. There should be a lot of advanced preparation, such as getting your own appraiser, so that you will be able to challenge -- if necessary -- the dollar amount that the government will initially offer you as compensation.

Question: I read your informative articles and I have a question concerning condominium organization. First we have an association in "title" only, since it is run by one lady who collects the fees. Problem one: she's too tired to collect the fees from the owners that have abandoned their units. Problem two: how do we collect the fees from bank owned units. I am trying to organize the other owners, and plan to schedule a meeting with them. Hopefully we can move forward. Jilma.

Answer: Dear Jilma. I doubt that this will be any consolation to you, but you are not alone. Many, many community associations have the same problems. There is a lot of apathy since many owners bought into the community so that others could cut the grass and shovel the snow.

And where there is apathy, someone -- such as your lady -- sees an opportunity to be called "madame president", and basically takes over the association. Unfortunately, it is an ego trip on the part of many board presidents.

I do want to make it clear that the great majority of associations are run by boards of directors who take their positions seriously and are working (without pay) for the good of the entire community.

What should you do? There is a provision in your legal documents that allows for board members to be recalled. There are requirements, such as giving the board member adequate notice and an opportunity to defend him or herself before the community votes on the issue.

I would contact the Community Association Institute (caionline.org) and find an attorney in your area that practices and understands community association law. Your group should retain a lawyer to guide you through the process.

To answer your questions, there are two ways to collect -- whether it is from bank owned units, current or abandoned owners: you either file a lawsuit against the delinquent owner or you foreclose on the unit.

You need a lawyer to represent your interests. Your condo unit is your investment; don't lose it.

Question: If I rent a house from owners whose house is paid off, are they required to have and keep homeowners insurance on their property? Antonia.

Answer: Dear Antonia. That's a great question, and I don't really know the answer. However, I do not believe that your landlord is required to have any insurance. But regardless of whether one is legally required to have homeowner's insurance coverage, it is -- in my opinion– a foolish decision if you do not have the protection that such an insurance policy can give you.

You should get what is known as "renter's insurance". This will not insure the physical structure of the building (or the apartment in which you live) but will cover loss of your personal property because of such catastrophes as fire, theft or vandalism.

You should ask your landlord if he has sufficient insurance coverage should there be problems in the building. If not, you should first contact your insurance agent and discuss your options. You might be wise to move out unless the appropriate coverage is available.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.


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