When the Government Comes Knocking – Negotiating Early Possession

By James Bulthuis

With the many infrastructure projects occurring throughout Washington, many property owners have received letters in the mail giving “notice of intent to take final action.”  These are notices that government agencies send to property owners notifying them of the government agency’s intention to acquire their property, voluntarily or not.  It is notice that the government will exercise its power of eminent domain.

Property owners are typically contacted by a “right of way” or “acquisition” agent working for the government.  These agents portray the image that they are seeking to assist you in the sale of your property to the government in an effort to avoid an eminent domain or condemnation action being filed against you.  In many cases this is true, but these agents are not working on your behalf.

The discussions generally start pleasant enough, but at some point the negotiations may break down.  Perhaps you believe the amount the government has offered to take your land is not enough.  Or the timing of the transaction is not reasonable because they want you to vacate immediately.  Whatever the reason, the formerly pleasant agent you were working with tells you that if an agreement is not reached then your land will be taken through a condemnation lawsuit..

Shortly before or after this threat is dropped, the government will ask for “immediate possession and use” of your property.  Their letter will cite RCW § 8.25.070, and will tell you that if you refuse to grant early possession and use of the property by their deadline, then you may forfeit your right to recover your attorney fees.

The decision to grant early use and possession must be a deliberate one.  Although RCW § 8.25.070 does grant the opportunity to seek recovery of your attorneys’ fees and expert costs, there are conditions that must be first met.  First, you must grant the government early use and possession of the land within the timeframe identified.  This is either 30 days from the date of the request or 15 days after the Court enters an order finding that the government’s taking is for public use and necessity, whichever comes later.  If suit has already been filed, then the deadline to respond comes quick.  Granting early use and possession does not necessarily mean that you must vacate the property within that time frame.  Your lawyer may be able to negotiate a move out time beyond that.

Then comes the next condition.  If the government fails to make a written settlement offer at least thirty days before trial, then your fees and expert costs may be awarded.  This almost never happens because the government agency will convey an offer.  So, that leaves the other condition: you must beat the government’s highest written offer at trial by 10% or more.  This requirement is a frequent source of confusion for property owners who are not represented by counsel experienced with eminent domain law.  The offer you must beat must have been in effect 30 days before trial.  This does occur, but less commonly than one may think.

Through the course of litigation, the government agency will obtain your expert’s appraisal, and will likely depose them and learn all of the reasons why you believe your property is worth more than what the government has offered.  If the agency believes you have convincing arguments, then it will increase its offer during the litigation.  So, that offer you have from the government today – before a condemnation lawsuit has been filed, may seem pretty low and you feel confident that you can beat it.  But that number is unlikely to be the number you must beat at trial.  Governments typically increase their offers a month before trial to avoid paying your attorneys’ fees and costs.

The upside to this is that you have forced the government to increase its offer.  The downside is that you paid attorneys and an appraiser their fees to get there.  This is why it is very important to partner with experienced counsel before a condemnation lawsuit is filed.  They can connect you with the appropriate appraisers to help inform you on the value of your Property and negotiate for you.  It is better to spend to a little money upfront finding that out early than experiencing the headaches and costs of litigation.  Better still, the government will pay some of your appraisal fees that are incurred evaluating their offer before litigation commences.  Similarly, some agencies, like Sound Transit, will also reimburse up to $7,500 towards legal fees you incur to evaluate their offer.

Tousley Brain Stephens has been litigating eminent domain cases for decades, and their counsel are consistently ranked by their peers as some of the top lawyers in Washington for eminent domain matters.  We are currently working on projects with Sound Transit, WSDOT, water districts, and cities and counties across the state.  Tousley Brain Stephens has a remarkable record in obtaining significantly more compensation for their clients than what the government agencies initially offer.

In addition, Tousley Brain Stephens have helped numerous owners and businesses relocate.  Business owners have rights to assistance in relocating their operations.  Often times, a business has been in one location for years, if not decades, and finding a new location is difficult.  Tousley Brain Stephens works with a network of realtors and consultants to assist our clients’ relocation efforts, and ensure the government agencies provide the financial resources they are required to offer to assist in the relocation.

If you have any questions or would like more information on how Tousley Brain Stephens may be able to help you, please contact Kim D. Stephens or James Bulthuis.