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Eminent Domain Law – Valuing Temporary Construction Easements

Posted on November 10 2014 by Gabriela Ocampo

Easements are access ways that cross one person or company's property to get to another. They can run along the edge or through any portion of a property. There are times when a temporary easement must be granted so construction workers can reach an area that may not be accessible by other means. In most cases, a request is made by the company requiring access. According to the laws governing eminent domain, they must offer satisfactory and compensatory compensation to the owners of the property needed for the easement. Even if the situation is only temporary, due compensation is required commiserate to the use of the land.

Understanding Eminent Domain

Eminent domain involves assuming control of another person or entity's property for public use. A condemning agent is the entity seeking to use or take control of the property in question. Condemning agents can be state, federal or local governments, utility companies or any other business entity that requires the property on either a permanent or temporary basis.

According to the 5th Amendment of the Constitution requires a property owner be compensated for the use of their property if it is taken in accordance with the laws governing eminent domain. Even if the property is only needed for a short period of time, due compensation is required to be paid to the owner. The 5th Amendment protects the rights of the property owner, but also ensures that if eminent domain is granted, the person receiving permission must provide adequate compensation pursuant to the property's fair market value.

Placing a Value on Temporary Easements

A temporary easement is required when the property in question is needed for a short period of time, normally during the construction of a building, road or when utility lines are being put in place. When permanent use is required, the compensation offered to the owner should be close to, if not more than fair market value.

Placing an actual monetary value on a temporary easement requires knowing the properties actual value and what would normally be charged to rent a property of similar value on a month to month basis. The length of time the land will be needed will be estimated and an offer of compensation will be made to the owner. In cases, where the offer is inadequate or extremely low, the owner may want to hire an attorney to make sure they are not taken advantage of.

Most cases, almost 90 percent, that involve eminent domain settle out of court before a trial is set. Companies or agencies that only require temporary use of the property are normally willing to negotiate the amount of compensation asked for by the owner. Both parties have valid arguments in an eminent domain case. Attorneys for both parties will often suggest avoiding court at all costs. Proper negotiation can result in both sides gaining what they need from the transaction without involving the courts.