Eminent Domain FAQ

View Eminent Domain/Condemnation FAQ
Eminent Domain FAQs about Eminent Domain Condemnation Law.

A condemnee who is successful in obtaining a condemnation award substantially above the amount original­ly offered can now generally recover all or most of its legal and expert witness costs. New York State struggled for many years before resolving the conundrum of providing just compensation for property taken by the State and its munici­palities while functioning within the American legal system where a litigant generally must absorb all or practically all of its legal and expert fees.

A property owner awarded the full market value of its condemned property by a court quite obviously does not receive the "just compensation" guaranteed by the Fifth Amendment to the U.S. Constitution and Article 1, §7 of the New York State Constitution if it is still out of pocket for substantial attorney, appraisal and engineering fees. Nevertheless, the Court of Appeals has held, in Hakes v. State, 81 NY2d 392, 398, 599 NYS2d 498, 501 (1993), that recovery of fees and costs is not a constitutional right:

"While condemnees are undoubtedly entitled under the State and Federal Constitutions to just compensation for property taken by the State, they received such compensation in the awards based on property value. The fees and costs allowed under [Eminent Domain Procedure Law] 701 are not an automatic part of such com­pensation. To the contrary, we have long held that attorney fees and additional costs are `mere incidences of litigation' and are not embraced in the constitutional right (City of Buffalo v. Clement Co., 28 NY2d 241, 262-264, 321 - NYSM 345). The Legislature's determination to allow such fees and costs - in the discretion of the court - does not establish a new entitlement but merely allows a court in condemnation cases to ameliorate the condemnee's costs in cases it considers appropriate."

Historically, New York State has attempted to "ameliorate" the condemnee's litigation costs at least as far back as 1890 when the General Condemnation Law and Grade Crossing Law were first enacted. Those laws gave courts discretion to grant an additional allowance of costs, not exceeding 5 percent, upon the amount awarded for damages. While far from adequate, the purpose of this allowance was that:

A person or corporation, whose property is sought to be taken under condemna­tion proceedings, is entitled to be heard at every step in the process, and in justice should be com­pensated not only for the land or property taken, but should be indemnified against all costs and expenses reasonably incurred, either in resisting the appropriation or in the proceedings for ascer­taining the compensation to be made. Matter of Brooklyn v. Long Island Water Supply Co., 148 NY 107 (1895).

Even this statement of fairness did not apply to all costs and all condemnations. Expert and legal fees were not recoverable under either the 1890 statutes or under recov­ery of cost provisions in the civil procedure laws. Claimants in municipalities that took property under spe­cial laws were not entitled to even this small allowance until 1970 when the Fourth Department in City of Buffalo v.J W Clement Co., 34 AD2d 24, 36, 311 NYS2d 98, 111, (4th Dept. 1970) mod. on other grounds, 28 NY2d 241, 321 NYS2d 345 (1971.), held1

"The Buffalo Charter results in unequal and unjust treatment of those owners in Buffalo whose property is condemned by the City as dis­tinguished from those owners whose property is otherwise condemned... Hence the Buffalo Charter must be held unconstitutional insofar as it deprives Clement of equal treatment under the law, that is, with respect to an extra allowance for costs...."