Can The Government Abandon An Eminent Domain Taking After Filing? After My Property Has Been Taken From Me? Or After Just Compensation Has Been Finally Determined?

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist landowners by providing them with some basic information about the legal concept of  “Abandonment” as it pertains to the exercise of the eminent domain power.  This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein. The definition of all hyper-linked terms can be found in the Dictionary of Key Terms on the OCA Website. 

It often comes as a complete surprise to the average property owner that a condemning body may have the right to simply walk away from a condemnation action that it has either threatened, initiated through the courts or prosecuted to the end result that a final detemination of just compensation has been rendered. However, in each of these situations, depending upon the law in the subject jurisdiction, it is entirely possible that the condemnation action can be dismissed and the property involved not taken. This does not mean, however, that a condemnor will not be held responsible for the property owner’s resulting costs, expenses and damages as discussed more fully herein.

Understanding the concept of  “Abandonment.“ In nearly every state, condemning authorities have some right to abandon or dismiss a condemnnation action, meaning that they can decide not to pursue the case, even after it has been filed and even after a final determination of just compensation has been made. The theory behind this right is that as a public entity, whose project funding is often supplied by taxpayer dollars, a condemnor should not be required to complete the acquisition of property under circumstances where it may be deemed unnecessary, or too problematic, or too costly. While there are many exceptions to the law of abandonment (some of which will be discussed in this article) and legal consequences as well (also discussed herein), in most cases courts have upheld the principle that a condemnor has an absolute right to walk away from the condemnation action it has either threatened or initiated.

Exceptions to the Right to Abandon. The laws differ from state to state regarding a condemnor’s right of abandonment and what exceptions may exist if and when it invokes that right. For instance, some states have removed by legislation or other legal measure the right of certain condemnors to abandon a condemnation action once they have filed the case against a property owner or once the condemnor has taken physical possession of the owner’s property through either quick take or immediate possession. Other states have held that if the property owner can demonstrate that it has detrimentally relied on the condemnation going forward and that significant damages would result if the case is not completed and compensation paid, the condemnor will be precluded from abandoning the case. Still other states put specific limitations on the right to abandon, such as requiring the condemnor to do so within a specific time period or otherwise the right is deemed forfeited.

Damages, Costs, Expenses and Attorney Fees.  It is not hard to imagine the financial ramifications to a property owner should a condemnor decide to abandon a condemnation action, particularly after the owner’s property may have been physically taken by the condemnor to construct the project or at the very end of a condemnation action, after there has been a hearing or trial on the amount of just compensation to be paid. Unfortunately, the right of abandonment has been recognized in both of these factual scenarios. However, this does not mean that a condemnor may not be held responsible for the property owner’s resulting damages, costs, expenses and possibly even attorney fees. Most jurisdictions do recognize the right of a property owner to recover certain out of pocket expenses and damages resulting from an abandonment, whether in the pending condemnation action or by virtual of the owner fiing a separate claim or case against the condemnor. While many states rely on case law to determine the degree and extent of an owner’s recoverable costs and expenses in an abandonment situation, other states have passed specific legislation to address the issue. Because the law differs dramatically from state to state regarding what the condemnor may be held liable to pay to the owner in the case of an abandonment, consultation with an experienced eminent domain lawyer is highly advised.

Abandoning A Condemnation Before Filing. Often a condemnor will decide not to pursue a condemnation action, even after it has threatened to do so and even after it has engaged in extensive discussions or negotiations with the property owner, leading the owner to reasonably believe that the property would be taken. In such situations it is generally the case that the condemnor has no legal obligation to actually file a condemnation action. Note, however, that in situations where the threat of condemnation has been held over property for an extended period of time causing significant uncertainty and damages, there may be a claim for pre-condemnation damages or inverse condemnation. Once again,consultation with an experienced eminent domain attorney is highly recommended.