Arkansas' Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  All governmental entities; numerous quasi-governmental entities, such as school districts, levee districts, airports; certain utilities; and private entities pursuant to specific legislative provisions.
  
  To condemn private property for a public use in Arkansas, there must be a specific enabling statute allowing the entity to proceed with the exercise of eminent domain. Arkansas’ legislative code is filled with dozens of statutes granting specific entities the power of eminent domain. It is important to confirm at the outset of any condemnation case that the entity seeking to exercise the power of eminent domain has been lawfully delegated said power by the State of Arkansas.
  

• What Are the Legal Requirements for Exercising the Power?

  Under Arkansas law, any exercise of the power of eminent domain must be for public use. Second, per the U.S. and Arkansas State Constitutions, just compensation must be paid for the property being taken. Arkansas’ Property Owner’s Bill of Rights further guarantees that a property owner shall receive reasonable notice of the taking, the right to be presented an assessment (appraisal) of the estimated compensation to be paid and a written good faith offer before any taking, and a trial by jury on the amount of just compensation to be awarded. Ark. Code Ann. Sec. 15-15-103.

• What Limitations or Defenses Exist?

  As always, a property owner can contest the entity’s right to take based either on the theory that the use is not a public use or that the entity does not have the requisite legal authority to condemn. However, trial courts will not substitute their judgment for the condemning entity in matters having to do with whether the public use is feasible or whether there is an alternative to acquiring the property owner’s property.

• What Constitutes a Public Purpose?

  Examples include, roadways, electric utility lines, pipelines, airports, stadiums, schools, sewer projects, levee projects. The list can be quite extensive and encompass most anything so long as 1) it is for a public purpose and 2) the entity has the statutory authorization to condemn.

• How is Just Compensation Determined?

  Arkansas typically uses the “before and after” method of determining just compensation: a property owner is entitled to the difference in the value of his or her entire property immediately before the taking and the value of the remaining property immediately after the taking as if the proposed project is completed and in place. However, when a corporation is the condemning entity, the determination is slightly different: the property owner is entitled to the value of the property taken plus any diminution of value to the remaining property regardless of any benefit the remaining property might gain from the project. Additionally, when a corporation is acquiring an easement by eminent domain, the property owner is entitled to the full fee value of the portion of his or her property to be encumbered by the easement. All determinations of just compensation in Arkansas are determined by a jury at trial.

• How Is Fair Market Value Defined?

  Arkansas defines fair market value as “the price that the property to be acquired would bring on the open market in a sale between a seller who is willing sell and a buyer who is willing and able to buy after reasonable opportunity for negotiations.” Arkansas Civil Model Jury Instruction 2221. Further, fair market value is defined as “the amount of money which a purchaser who is willing but not obligated to buy the property would pay to an owner who is willing but not obligated to sell it, taking into consideration all uses to which the land is adapted and might reasonably be applied. Fair market value is not necessarily based on the use to which the property was being put at the date of taking, but is to be based on the fair market value of the land put to its highest and best use.” Arkansas Civil Model Jury Instruction 2006.

• What About Recovering Damages to Remaining Property?

  Severance damages, or damages to the remainder property are compensable in Arkansas. However, business loss or damage is not compensable in Arkansas.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Property owners in Arkansas are entitled to an award of the owner’s costs, expenses, and reasonable attorney’s fees incurred in the preparing and conducting the final hearing and adjudication if the compensation ultimately awarded exceeds the condemning entity’s offer by twenty percent or more. Ark. Code Ann. Sec. 15-15-103.