Louisiana's 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?

  In Louisiana, the only Napoleonic state in the country, “expropriation” is the term used in the taking of private property for public use. Pursuant to La. R.S. 19:2.1, the state or its political corporations or subdivisions may take private property for public use in accordance with Article 1, §4 and Article VI, § 21 of the Louisiana Constitution. The general expropriation statute sanctions takings by public bodies and certain quasi-public entities, such as utilities. Consequently, it is important to confirm at the outset of any case whether the entity seeking to exercise the power of eminent domain has received a lawful delegation from the State to do so.

• What Are the Legal Requirements for Exercising the Power?

  Under Louisiana law, property can only be expropriated for a lawful public use or purpose. Expropriating authorities must possess the authority to take needed property, and in all situations, if the right to expropriate exists, just compensation must be paid for the property being taken. Louisiana law also requires the expropriating authority to attempt, in good faith, to reach an agreement as to compensation with the owner of the property sought to be taken. The expropriating authority must provide the landowner with certain information from its appraisals or estimates and must offer as payment an amount not less than the lowest appraisal. If the parties are unable to reach an agreement, the state or its political corporations or subdivisions may then file a petition for expropriation in the district court of the parish in which the property to be expropriated is located.
  
  To learn more about the general procedural aspects of expropriation cases in Louisiana, refer to Part I of Title 19 of the Louisiana Revised Statutes. Special statutes provide expropriation proceedings for governmental subdivisions, such as municipalities, generally, and particular municipalities and other public bodies.

• What Limitations or Defenses Exist?

  Once the decision to proceed with a public project is made and the acquisition of property necessary for the project is determined by an authorized governmental entity, the grounds to challenge the condemnation are limited under Louisiana law. An owner who contests the public necessity for the taking, or contends that more property is sought to be taken than is needed, must typically file an answer within 20 days of the notice and petition of the expropriation (although some statutory time periods vary depending upon the taking authority). The landowner may also file a reconventional demand for additional damages and/or to contest the amount of compensation proposed by the expropriating authority.
  
  The trial judge determines whether there is a public necessity for the taking. For the landowner to meet his burden to show that the expropriating authority has abused its discretion in selecting the site to be expropriated, he/she must show that the authority acted in bad faith, without adequate determining principles, or without reason. Either party may demand a trial by jury to determine the amount of compensation.

• What Constitutes a Public Purpose?

  Like the U.S. Constitution, Louisiana’s Constitution limits the use of expropriation to “public use,” a term which, over time, has come to include public purpose as well. Typical uses that satisfy a public use or purpose can include roads, parks, schools, other public buildings, or other projects or undertakings that serve a public good or need. In Louisiana, courts typically defer to legislative judgments of what constitutes a public use and consider whether the exercise of the expropriation power is rationally related to a conceivable public purpose.

• How is Just Compensation Determined?

  The definition of just compensation under Louisiana law includes the full market value of the land taken, considering the land in the light of its highest and best use, along with other economic loss which he/she may prove is caused by the taking. Since the Louisiana Constitution requires that a landowner be compensated to the full extent of his loss, damages that might be awarded to achieve this result may include moving costs, relocation, inconvenience, and lost profits from the taking of a business enterprise. Landowners in Louisiana have the right to a trial by jury to determine compensation.

• How Is Fair Market Value Defined?

  Louisiana courts define fair market value as the price that informed and willing buyers and sellers would reach under usual and ordinary circumstances. In expropriation cases, the date of taking is typically the date that the suit is filed, and it is on this date that the value of the property must be determined. Because fair market value is driven by both the “valuation date” to be applied and the “highest and best use” of the property, both elements are important in the value determination. This approach examines the worth of the land in light of the highest, best, and most profitable use to which it may be reasonably put in the near future by reason of its location, topography, and adaptability. A proposed highest and best use must not be speculative but reasonably likely to occur in the not too distant future.

• What About Recovering Damages to Remaining Property?

  Under Louisiana law just compensation includes diminution in value (i.e., damages) to an owner’s remaining property. When the expropriating authority has taken only part of the landowner’s property for public purposes, the landowner is entitled to compensation for the full market value of the parcel taken and any damages which may have been suffered to the land which was not taken, along with any other economic loss which he may prove is caused by the taking. These damages to the land not taken are called “severance damages,” describing the damage to the remaining property by the severance of the land taken from that remaining property. Severance damages to the remaining land are measured by the difference between the market value of the remaining property immediately before and immediately after the taking. Moreover, in Louisiana, a property owner is entitled to claim damages for business loss caused by the public project on the theory that Louisiana law requires that a landowner be compensated “to the full extent of his loss,” which means that he must be restored to a financial position equal to that which he enjoyed prior to the expropriation.
  
  Louisiana law also provides that a landowner with property adjacent to expropriated property, but is not actually taken, may suffer an economic loss. For the landowner to recover, this economic loss must be physical in nature and a direct result of the expropriation of the adjacent property.

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

  Where the landowner elects to challenge the amount of compensation offered by the authority initiating the taking, attorney’s fees are not specifically required by the Louisiana Constitution. The award of attorney’s fees is left to the discretion of the trial court. However, where the highest amount of compensation offered to the landowner is less than the compensation awarded for the property and any severance damages, the court may award reasonable attorney’s fees (La. R.S. 19:8). Attorney's fees are also recoverable if it is determined that the state does not have the right to condemn the property or if the expropriating authority abandons the proceeding (La. R.S. 19:201). Furthermore, in Louisiana, landowners are entitled to recover their litigation costs and expert fees. The award of costs is authorized by overlapping statutory and codal provisions: La. R.S. 13:5112, which provides for the discretionary award of costs in favor of the successful party in a suit against the state or a political subdivision; and La. C.C.P. art. 1920, which provides, generally, that costs are to be paid by the party cast in judgment, unless the court, in equity, rules otherwise.