First defined in the Fifth Amendment of the United States Constitution, eminent domain means that the government has the right to confiscate private property for public use. The property owner should be justly compensated for the property but cannot easily prevent the seizure of that private property. The Supreme Court confirmed the validity of eminent domain again in 1946 in the case of the United States v. Carmack. Despite court approval, it is no surprise that the concept of eminent domain is often not a popular one among property owners.
Texas Landowner’s Bill of Rights
Fortunately for Texans, the State of Texas Landowner’s Bill of Rights provides additional protection for landowners in cases of eminent domain. It states that any federal or private entity wishing to seize land from a Texas property owner must compensate the owner fairly and justly, and that the land must be for public use. For example, seized land must be necessary to build infrastructure, to access natural resources, or to use in some way that benefits the public.
Seizing land under the guise of eminent domain is also known as condemnation. If the landowner refuses the government’s offer, the government may then condemn the property. Before seizing private property, however, a government agency must provide an appraisal from a certified appraiser to guarantee that the compensation is fair and just. The landowner then has the right to file a claim against the government agency if he or she believes the compensation is not fair and just.
House Bill 2730, which went into effect in January of 2022, offers landowners even greater protection. Significant amendments to the rules of eminent domain further support a landowner’s rights while increasing requirements for government entities.
Changes to the Landowner’s Bill of Rights include the following:
- The condemning entity must notify the landowner of his or her right to file a written complaint;
- The condemning entity must include an addendum detailing the terms of property conveyance and must also identify which terms are negotiable; and
- The Texas Attorney General will review the compliance of condemning entities every two years.
HB 2703 also amends the initial offer to the landowner; the condemning entity must include a statement in bold print and larger font which states either that the compensation includes damages to the remaining property or that it is a formal appraisal which ascertains damages to the remaining property.
Regarding condemnation lawsuits, HB 2703 requires that
- the condemning entity must notify the landowner of the condemnation lawsuit petition via both first class mail and certified mail with a return receipt;
- in addition to the three statutory special commissioners already required, judges must appoint two alternate special commissioners; and
- a special commissioner may be struck from the proceedings either 10 days after special commissioners are appointed or 20 days after the petition is filed, whichever of the options provides parties more time.
HB 2730 also specifies information that private entities must provide to landowners regarding the number and size of pipelines on the property as well as the substances the pipelines will transport. Landowners must also be notified of easement rights and limits to third-party access.
Further benefitting landowners is the way that HB 2730 amends the Texas Occupation Code. Condemning entities have additional requirements and increased penalties for actions such as receiving compensation for knowingly making an offer that “is lower than the adequate compensation required under the Texas Constitution.”
Texas property owners are fortunate that Texas provides many protections for landowners involved in eminent domain proceedings. An experienced real estate attorney will also ensure that the property owner is treated fairly and justly.
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