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Eminent DomainLaw


Anyone who has ever watched a cop show has heard a police office tell the bad guy, “You have the right to remain silent.  Anything you say can and will used against you in a court of law ….”  This warning is based on the 5th Amendment to the U. S. Constitution which protects people from self-incrimination. The U.S. Supreme Court requires arresting officers to advise a suspect of these rights (commonly referred to as a Miranda warning) before questioning the suspect. If the warning isn’t given, statements made by the suspect could be excluded from formal evidence and not used against the suspect at trial.

If government or condemning authority agents contact you about the taking of your property, you have absolutely no obligation to respond.  In our experience, you are actually better served by not speaking with the agent because anything you say may be used against you later.

Typically, agents record every contact and conversation with an owner. We have seen agents write down something entirely different than what the owner thought was said or intended. Mostly this is not done out of ill intent by the agent but because of misunderstanding or lack of knowledge by the owner.  For example, an agent can discuss the impact of a taking with an owner using only an aerial photograph and a drawing showing the proposed area to be acquired. From these documents, the owner might comment that the taking does not appear to harm the remaining property and that the offer appears to be fair. After that conversation, the agent makes a note of that comment. Later in the process, the construction plans reveal that the taking authority plans to construct a retaining wall within the taking, limiting visibility and causing access issues. Since the owner didn’t see the construction plans at this initial meeting, it’s understandable that he might say he didn’t think the taking would damage the property and that the offer was fair. Unfortunately the statement made by the owner and recorded by the agent can be used against the owner. It has just become more difficult to achieve full compensation by creating an obstacle to overcome which would not have existed had the owner made no statement at all.

These agents are professionals whose full-time occupation is to acquire property for their employer. By the time they first contact you, they already have the support and back-up of lawyers, engineers, appraisers and land planners providing them with information about your property, information you yourself may not be aware of. I have observed that most agents are professional and well-meaning. However they are usually better informed than the owner, and they understand how the process works.  If you are negotiating with them, it is not even close to a level playing field.

At Gaylord Merlin Ludovici & Diaz, we recommend that you engage an attorney as soon as you are aware that your property may be taken.  As your attorneys, we become the point of contact for the authority, avoiding the potential of any miscommunication between you and the agent.  It also allows us the opportunity to review with you all of the documents such as appraisal reports and the full construction plans which must be understood so you will be fully informed about the taking. In short, our job at Gaylord Merlin Ludovici & Diaz is to level the playing field so that when government seeks to take your property, you are thoroughly prepared and that all of your rights are protected.

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