Practice Areas: A California Eminent Domain Attorney & Other Practice Areas

MFoxLaw is a California Real Estate Law Firm with experienced California Attorneys that are highly regarded in California Eminent Domain Law. Learn more about MFoxLaw Practice Areas.

The Law Office of Mark R. Fox, MFoxLaw, located in Los Angeles and Bakersfield, specializes in Real Estate and Eminent Domain Law and collaborates with Fisher & Talwar, PLC for expert support. Our dedicated California Eminent Domain Attorneys distinguish us from larger firms by allowing us to focus on fewer cases, enabling us to devote more time and energy to each client. By participating in every stage of the process, our partners effectively help clients identify their goals and advise on the best strategies to achieve them.

Practice Areas

Eminent Domain

Our Eminent Domain practice involves all types of property including agricultural, industrial, commercial, multi-tenant residential, mixed-use properties, churches, parks, etc. Our eminent domain work also includes obtaining compensation for common affected property rights such as real estate, fixtures and equipment, inventory, loss of business goodwill, relocation benefits and assistance, and all types of intangible property rights and interests.

Examples of a few less common property rights affected by eminent domain include: zoning and other land use, oil rights, mineral rights, water rights, water storage, air and wind rights, solar rights, mitigation rights, environmental rights, surface rights, subsurface rights, copyright rights, trademark rights, and other intellectual property rights.

The attorneys the the Law Office of Mark R. Fox are skilled litigators who focuses exclusively on representing commercial businesses and property owners in eminent domain matters. Over the course of his career, FoxFirm has obtained tens of millions of dollars in verdicts and settlements for his clients from various governmental agencies throughout California.

Real Estate

The attorneys at the Law Office of Mark R. Fox are experienced in resolving complex real estate issues. MFoxLaw Practice Areas include, purchase and sale disputes, construction claims, eminent domain, landlord-tenant disputes, claims involving adverse possession, prescriptive easements, quiet title and other issues relating to real property. MFoxLaw attorneys deal with non-litigation, and litigation matters pertaining to a wide variety of complex, substantive and unique business and property issues.

Inverse Condemnation

While it seems improbable that a government entity can take private land without using eminent domain or compensating you, it does occasionally happen. If property has been acquired without the use of condemnation proceedings (eminent domain), the law provides relief in what is called inverse condemnation.

Inverse condemnation occurs when a public project causes property damage without payment of just compensation or effectively results in the property being taken, damaged or occupied. Among other things, inverse condemnation may result from a nearby public project that causes impairment of access, land subsidence (sinking), loss of adjacent or subjacent support, flood damage, landslide or physical occupation of the property.

The most obvious form of inverse condemnation is when the government physically builds a project, such as a road, on your property. However, inverse condemnation is not limited to the physical taking of property. Simply put, these actions have negative impacts on the value of the property for which the property owner may be entitled to compensation. Regardless of whether the government has filed or intends to file an eminent domain action to acquire the impacted property, the owner or occupant may be entitled to compensation based on inverse condemnation liability.

Land Use / Environmental

The Law Office of Mark R. Fox represents clients involving both public entities and the private sector in matters involving land use planning and zoning and environmental litigation related to Eminent Domain issues. The Law Office of Mark R. Fox represent clients on matters regarding environmental / contamination issues before city councils, boards of supervisors, State Agencies, as well as other governmental bodies. In an acquisition context, The Law Office of Mark R. Fox assists real estate clients in their dealings with public agencies in land use, environmental issues, and eminent domain matters.

Eminent Domain Process

What can I expect to happen when my property (or business) is targeted by the government for acquisition by Eminent Domain?

Once a condemning Agency or City decides that it needs a specific piece of property (which of course, may be where a business, residence, apartment, or industrial use is located) it will take the following steps to acquire the property.

Pre-Litigation

Initially, a government agency, or City, will have an environmental assessment done for the entire project for which it intends to acquire property. This is know as an “Environmental Impact Report” or “EIR”.
This phase is finished when the condemning agency certifies the Final EIR.
The agency or City then hires appraisers to value the property that they intend to acquire.
The property owner will receive a Notice of Intent to Appraise the Property. This is when the appraiser meets with the property owner to look around the property and ask questions about it.
Based on this appraisal, the agency will make an offer to the property owner – referred to as a “Pre-Resolution Offer”.
Assuming the property owner does not accept the offer, the agency will conduct a Resolution of Necessity Hearing. At this hearing, the property owner (or any interested party) may appear and voice their concern about the acquisition of the property.

Eminent Domain Lawsuit Gets Filed

Following the Resolution of Necessity Hearing, the agency will File an Eminent Domain lawsuit to acquire the property by eminent domain.

The agency will then serve any named defendant (typically, property owners, tenants, lenders, etc) with the Eminent Domain lawsuit.
The Defendants in the eminent domain lawsuit are required to file Responsive Pleadings (typically an “Answer”, or a “Demurrer”) with the Court alleging various rights, challenges, and entitlements.
If the agency wants to take immediate possession of the property, it must deposit the amount of money equivalent to the amount of the appraisal (also known as “Probable Just Compensation”) with with the Court, or with the State of California. This is typical done following the Filing of the Eminent Domain Lawsuit (or sometimes concurrent with). The Agency must give 90 days notice to all interested parties, before the hearing date.
The property owner, or anyone with an interest in the property, may apply to the Court to withdraw any portion of the money that they are entitled to. (by doing so, the property owner is waiving any challenge to the agency’s right to take the property, but is not waiving the ability to challenge the value of the property).
The Court then holds a Hearing to determine whether the party applying to withdraw the money on deposit is entitled to do so, and ultimately orders the money to be disbursed accordingly.
The Order for Immediate Possession is signed (following the Hearing on Immediate Possession – assuming it is granted)
Following the Motion for Possession, and any Application to withdraw the funds on deposit with the Court, the litigation moves forward with the “Discovery” period (In essence, the parties exchange information about the property and/or business valuation, and/or any other information relating to the Eminent Domain Lawsuit)
During the litigation, any necessary legal Issues are determined.
Prior to the trial, all parties are required to exchange appraisal information (This includes appraisals for Real Estate / Improvements / Business Goodwill). The Litigation Appraisal Exchange occurs about 90 days prior to trial.
Typically a Mediation is scheduled after the Appraisal Exchange, but before trial. In many cases a retired judge, or other Mediator, will be retained to try persuade the parties to reach a settlement in the case.
Prior to the Trial, the parties will be required to exchange of Final Offers and Final Demands, based on their appraisals and any other relevant factors in the litigation. This typically happens about 20 days prior to Trial. The ability to collect Attorney’s Fees, in addition to any award for the Property, Improvements, or Loss of Business Goodwill, will be determined by this exchange.

Trial

Finally, a valuation Trial will be held. A typical Eminent Domain Trial will typically last anywhere from 5-14 days (sometimes more ) – depending on the issues involved, and the Court’s schedule. A jury ultimately decides any contested issues involving valuation. (i.e. how much the property is worth, how much compensation there will be for loss of business goodwill, etc)

If we reach an agreement with the Agency on valuation prior to litigation, then escrow is opened, and the terms are addressed. The Agency then takes possession of the property according to negotiations, and typically, they will give tenants 90 Day Notices to Vacate. Sometimes, (especially if tenancy issues are challenged by the tenants) a lawsuit may be filed by the Agency, naming the Tenants as defendants in an Eminent Domain lawsuit.

Frequently Asked Questions

Who can take my property?

Where does the government’s power to acquire private property come from?

When can the government take my property?

What is eminent domain (Condemnation)?

Can the power of Eminent Domain be abused?

It can! Eminent domain abuse has become a growing concern in many communities where a property developer convinces the city take private property for the purpose of redevelopment for profit. The law has gone as far as defining “public use” as “for the public good”, which are entirely different things. Under the “public good” definition, cities can claim private property and allow private developers to raise new buildings for the sole purpose of profit growth.

What is just compensation?

Just compensation has been determined by the United States, and more specifically, the California Supreme Courts to be an amount equal to the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Another aspect to valuation is the “highest and best use” of the property which is not necessarily the use to which the property is put at the time it is taken by the government. As experienced eminent domain attorneys we can, of course, help you maximize the just compensation whether through negotiations, or aby way of a jury trial, if necessary.

Can a public project be stopped?

As a property owner, you have the right to challenge the government’s ability to acquire your property. Trying to stop a public project is generally referred to as a “Right to Take Challenge”.

Some issues that can be raised include, but are not limited to, the following … Does the government have the authority to acquire property? In other words – Do they have the “power of eminent domain”? Is there a sufficient “Public Purpose” for the acquisition of property? Is the property “Necessary” for the project? Did the government offer “Just Compensation” for the property?

In most cases, the governmental entity seeking to acquire property typically does have the ‘power of eminent domain’ (but it should be checked) so whether a ‘right to take challenge’ will be successful generally depends on whether the project is for ‘public use’ and whether the acquisition of property is ‘necessary’. At the Law Office of Mark R. Fox, we can help you examine whether these challenges may be successful, and whether it will be worth the effort to raise them.

Can the government’s offer of just compensation be challenged?

Yes. If you and the government cannot agree on a price for the property, it can be challenged in a court of law. A governmental entity must file an eminent domain lawsuit to acquire property by force. And a jury eventually decides how much the property is worth if a negotiated resolution is not possible. This is where an experienced California Eminent Domain attorney will be of great value to guide you through the entire eminent domain litigation process.

When can the government take possession of my property?

The government must first make you an offer that they believe is equal to just compensation for the property. If you don’t accept it, and they still want to get possession of your property, they must file an eminent domain lawsuit and deposit that money (the amount of the offer) with the Court, or with the State of California. You then have the right to apply to withdraw that money. Of course, we can help you with this because it can become a complicated procedure. Withdrawing this money does not waive your right to contest how much more compensation you believe should be paid for your property. You do, however, waive your ability to challenge the government’s right to acquire the property for their public project.

Can the government force me to move?

If a government agency acquires property by their use of their power of eminent domain, and you own a business on the property, you may be forced to relocate your business to a new site.

However, if you have to move because of the condemnation (eminent domain) project, you may be entitled to compensation for your losses.

Specifically, you may be entitled to compensation related to relocating your business (Relocation Benefits), compensation for improvements pertaining to the realty (Fixtures & Equipment), and compensation for loss of business goodwill (Goodwill).

MFoxLaw founder, Mark R. Fox, is a California Eminent Domain Attorney, practicing since 1996.