Oklahoma'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 Powers?

  Oklahoma’s statutes delegate the power to condemn property for authorized purposes to governmental bodies, agencies, utility companies, pipeline companies and even private entities and individuals in certain instances.
  
  In order for an entity to exercise the power of condemnation it must be expressly granted by statute. These statutes are codified in numerous sections of the state code applicable to a multitude of instances.
  
  The constitutional provision limiting the power of eminent domain in public use projects is found at OKLA. CONST. Article 2 §24. The constitutional provision limiting the power of eminent domain for private use is found at OKLA. CONST. Article 2 §23.

• What Are the Legal Pre-Requisites for Exercising the Power?

  In all instances except private condemnations for ways of necessity the condemner is required to engage in efforts to purchase the property prior to filing a suit to condemn the property.
  
  If pre-suit negotiations fail to result in a settlement the matter proceeds as follows:
  
  1. The condemner files its petition to take the property in the district court of the county in which the property sought to be condemned is located. There is no Answer in these special statutory proceedings and the matter proceeds as herein indicated.
  2. An initial hearing is conducted by the court for the purpose of selecting and appointing a board of 3 commissioners who are instructed by the judge to review the property and the taking and receive information from the condemner and the landowner in order to make a report to the court estimating the amount of just compensation to be paid in the case.
  3. From the date of the filing of the report of commissioners the parties are allowed 30 days in which to file exceptions in the matter. Exceptions challenge the legality or scope of the taking or the legality of the process. If no exception is filed within this 30 day period the ability to make these challenges is lost.
  4. From the date of the filing of the report of commissioners the parties are allowed 60 days in which to perfect their right to a jury trial on the issue of the amount of compensation by filing a demand for jury trial. If no demand for jury trial is filed within the 60 day time period the right to a trial on the issue of compensation is lost.
  5. Following the filing of the report of commissioners the condemner is required to deposit a sum of money in the amount of the report of commissioners with the court clerk. This is called the commissioners’ award. There is no statutory time period in which the condemner is required to make the deposit, but it must deposit the money before it is allowed to take possession of the property. Once the deposit is made the condemner is authorized to dispossess the owner and go into possession of the property. The landowner is authorized to withdraw the commissioners’ award after it is deposited without waiving the right to contest the amount. If the owner withdraws the commissioners award the owner is generally deemed to have waived the right to contest the legality of the taking by way of an exception. There is controversy in the decisional law on this waiver of the exception by withdrawal of the commissioners’ award. While lower courts draw on a surface damage case under a special condemnation related statute for the waiver position, there is no reported appellate decision directly on point in a direct condemnation case.
  6. If the case remains unresolved after the commissioners process the matter proceeds through the discovery process and ultimately the amount of compensation is decided at a jury trial. At a jury trial of the case, the commissioners’ award is not admissible as evidence.
  
  Oklahoma has adopted a set of policies commonly referred to as the landowner bill of rights in condemnation cases. While these are policies and do not create substantive rights they set forth a framework that the legislature has prescribed government entities should follow. These policies are set forth in OKLA. STAT. Tit. 27 §13.

• What Limitations or Defenses Exist?

  The condemner must strictly follow the special statutory procedure and requirements to condemn the property. The decisional law requires strict adherence to the statutes and that the interpretation of the statutes be made in favor of the landowner. If the condemner does not follow the statutory procedure and requirements the taking may be defeated by a landowner’s challenge to the proceeding.
  
  Possible defenses include: (a) the condemner’s legal authority to condemn the property (b) whether the purpose for which the property is being taken is a sufficient legal ground upon which the condemner may exercise the power, (c) whether the requisite necessity exists to authorize the taking, and (d) whether the condemner has adhered to the special statutory requirements to exercise the power to condemn.
  
  Challenges to the taking raise varied issues of law and fact and additional avenues to defend against the taking may be presented in a given case.

• What Constitutes a Public Purpose?

  While the language of the federal constitution and Oklahoma’s constitution restrict the power to condemn to instance of “public use” the courts have interpreted this phrase to be “public purpose”. This interpretation arose in cases in which there was no physical occupation and use of the property by the condemner, but the purpose was “public”.
  
  Common public uses include things like roads, electric transmission lines, gas lines, utility lines and facilities, public parks and public buildings. Public purposes include such things as economic development, tax revenue enhancement and urban renewal.
  
  Under Oklahoma law the condemning entity has the burden of proof on the issue of whether the taking is for a public purpose or not.

• How is Just Compensation Determined?

  The U.S. and Oklahoma constitutions both require that a landowner be paid “Just Compensation” when the owner’s property is taken. Decisional law describes this compensation as the amount of money that will make the landowner whole for the part of the property taken plus any damages to the remainder property that was not taken. Oklahoma law differs from many jurisdictions by its inclusion of costs of relocation in the computation of just compensation.
  
  The amount of just compensation is determined, in the first instance, by the court appointed commissioners as discussed previously herein. If neither the condemner nor the landowner demand a jury trial after the commissioners’ report is filed then the commissioners’ award settles the case.
  
  If either the condemner or the landowner file a demand for jury trial after the commissioners process then the amount of just compensation is placed at issue in the proceeding. Absent a settlement in the course of the litigation the final amount of just compensation to be received by the landowner is determined by a jury. Juries are comprised of 12 persons and a decision is effective upon the concurrence of 9 of the 12 jurors.
  
  In the event the matter proceeds to a jury trial the commissioners’ award is not admissible as evidence. If this rule is violated a mistrial is required.
  
  In a trial of the compensation issue the landowner is entitled to compensation for the property and damages to the remaining property based upon the property’s highest and best use. This concept is discussed later herein.
  
  At the jury trial of a condemnation case the landowner has the burden of proof to establish the amount of just compensation to which the owner is entitled. This is a novelty of condemnation law. Even though the condemner is the plaintiff that has sued the landowner to take the property, the landowner has the burden of proof and goes first throughout the proceeding.
  
  The landowner and the condemner generally utilize expert witnesses to establish the value of the property and any damages to the remaining property. Most cases involve the use of real estate appraisers or sales people as witnesses. Depending on the facts of the case additional experts may be utilized such as engineers, surveyors, land planners, relocation specialists, construction contractors, landscapers and many others. The landowner is generally always deemed competent and entitled to testify to value if the landowner chooses to do so.

• What About Recovering Damages to Remaining Property?

  In Oklahoma just compensation is generally described as (1) the value of the part taken, plus (2) the damages to the remainder property which was not taken, plus (3) relocation and/or refitting of personal property. These are each very fact specific issues to which a myriad of decisional rules of law may be applicable.
  
  Property Taken: The property and improvements which are actually acquired by the condemner is referred to as the “take area” or “take”. The landowner is to be fully compensated for all the property which is actually taken. This compensation is to be based on the property’s “highest and best use” regardless of its current or past use. The prime example of this is a vacant tract being currently used for agricultural purposes, but which has a highest and best use of commercial development in the market. In many instances values of components of the property taken are valued utilizing what is known as a “cost to cure” method. An example of a “cost to cure” might be the loss of parking spaces from a commercial location where the value is measured by what it would cost to reconstruct those spaces at a different location on the remaining property.
  
  Remainder Property: When a taking involves only a part of the total ownership a remainder is involved in the compensation determination. The remainder is the part of the property which is not actually taken but remains after the taking. The landowner is to be fully compensated for all damages to the remainder property. Damages to the remainder may result from many fact specific conditions arising due to the taking. Examples of damages to the remainder include such things as a decrease in value due to increased noise, difficulty in access, loss of parking, changes in view of the property or from the property, and a plethora of other possible situations.
  
  Damage to Personal Property: Oklahoma law makes it clear that the requirement to pay just compensation for property taken or damaged extends to personal property. As such, the costs to move and refit personal property necessitated by the taking is compensable. This is a complex area of law somewhat unique to Oklahoma. In cases in which federal funds are used and to which the Federal Relocation Act applies it is further complicated by the interplay of state and federal statutes dealing with relocation issues.
  
  Interest on Judgment: If the final judgment is greater than the commissioners award the condemner is responsible to pay interest on the deficiency from the date of take until the entry of the judgment at the rate of 6%. The condemner is also required to pay interest at the statutory rate of interest, which varies from time to time, on the amount of the deficiency following judgment until it is paid in full by the condemner.

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

  In Oklahoma a landowner is entitled to recover all attorney fees, expert fees and litigation costs in the event of a verdict which exceeds the report of commissioners by at least 10%.
  
  The condemner is always responsible for the initial costs of acquisition in a condemnation proceeding. These are the filing fees, commissioners fees and other initial costs of the proceeding through the commissioners process.
  
  The condemner’s attorney fees and expert witness fees cannot be shifted to the landowner in the event of an adverse verdict.

• Can the Government Take Possession of the Landowner’s Property Before Final Compensation is Paid?

  In Oklahoma the government cannot take possession of property until it pays the commissioners’ award into court. When the commissioners award is deposited the government can take possession.
  
  As discussed above, the landowner is entitled to withdraw the commissioners’ award after it is deposited in court and may use that money for whatever the landowner desires.
  
  In the event that either the condemner or the landowner demand a jury trial, then the commissioners’ award is not the “final compensation” in the case. The final amount of just compensation will be determined by the jury or a settlement. Thus, the government has taken possession before the “final compensation” has been paid.
  
  References and Links (we can get these links to you) Oklahoma Uniform
  
  Jury Instructions “Eminent Domain” OKLA. CONST. Art. 2 §24
  
  OKLA. STAT. Tit. 27 §11
  OKLA. STAT. Tit. 27 §12
  OKLA. STAT. Tit. 69 §1203
  State ex rel. DOT v. Little, 2004 OK 74