BY MICHAEL F. YOSHIBA, ESQ.
Even seemingly minor acquisitions can cause legal challenges
On a recent project, we assisted our City client in San Bernardino County, California
in acquiring permanent street easements for a proposed street widening project. The
acquisition involved four privately-owned, single family residential parcels, each of
which had its own unique sidewalk. Because they were constructed site-by-site while
under the jurisdiction of the County, each sidewalk varied in size and together, they
formed a staggered alignment.
The proposed public project design sought to straighten the street with the installation
of new sidewalks and greenbelt areas for safety and aesthetic reasons. The proposed
permanent easement areas were each less than 200 square feet and did not impact
any structural improvements. After the appropriate environmental clearances were
secured, the City ordered appraisals to determine just compensation.
Once completed, the City’s governing body reviewed and approved the appraisals
reporting. The City set the amount of just compensation and made formal written
offers to purchase the easements at the established fair market value of $2,000 each.
Navigating the Legal Process
Upon receipt of the City’s written
offers to purchase, the property owners
realized they needed guidance in
navigating through the legal process.
A formal written offer to purchase
includes a detailed description of
the acquisition process, however, the
verbiage contains many specific legal
phrases and references. Although these
are intended to inform affected property
owners, they often lead to confusion.
Some property owners may turn to their
friends and family familiar with real
estate to assist them in responding the
City’s offer to purchase, but eminent
domain law is highly specialized.
Most attorneys, including those who
specialize in real estate, rarely deal with
the procedural specifics in eminent
Consulting with competent eminent
domain legal counsel is typically the next
consideration, and there are two ways
to compensate them. One is through a
contingency agreement and the other is
retaining them on an hourly basis.
With contingency agreements, attorney
compensation is based on an agreed
percentage of the final settlement, and it
includes all of the attorneys’ time from
the first meeting until final resolution
of the case. For example, when the
estimated just compensation is $2,000, a
40 percent contingency agreement leaves
the property owner with only $1,200. Not
surprisingly, there is very little incentive
for attorneys or property owners to enter
into a contingency agreement in these
small compensation cases.
Retaining an eminent domain attorney
through a retainer agreement based on
hourly rates is another option. However,
those hourly rates can vary significantly
depending on their experience and
skillset. The time necessary to secure a
settlement or court judgment can very
easily range from 5 hours to 1,000 hours.
The cost could be exorbitant for the
property owner, and once again, there
could be little financial incentive for the
Don’t Let Size Fool You