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Eminent domain in North Carolina: when the government takes land

Eminent domain is the power to take land from an owner without consent, for a public use, if the condemnor pays the compensation the law requires. In North Carolina, Chapter 40A lists who holds the power, and Article 9 of Chapter 136 sets the procedure for the Department of Transportation.

Talk about your land

Quick summary: This guide explains who may condemn land in North Carolina, the public use requirement, the notice, the offer, the deposit, when title passes, and how compensation is set. It is for landowners who receive a letter from a road agency, a town, or a utility. The key takeaway: the deadlines are in the statutes, and a condemnation attorney and an appraiser answer the price question.

What eminent domain is

Eminent domain is the power to take an interest in property from its owner, against the owner’s will, and vest it in the holder of the power upon payment of compensation. That is how the Chapter 40A definitions put it. Condemnation is the court procedure that exercises the power.

The power reaches more than land. The same definitions count leases, options, rights of access, rights-of-way, easements, water rights, and air rights as property. A taking can be a whole tract, a strip along a road, or an easement across a field. For the difference between a fee strip and an easement, see Right-of-way vs easement: what the difference means for land.

Who may condemn land in North Carolina

North Carolina limits the power to the bodies and purposes a statute lists. Chapter 40A’s list names local public condemnors, other public condemnors, and private condemnors, each with its own purposes.

Cities, counties, and other public bodies

Cities and counties may condemn for listed purposes. Examples include streets and sidewalks, public enterprises such as water and sewer systems, parks, storm drainage, and public buildings. Other public condemnors include sanitary districts, water and sewer authorities, housing authorities, hospital authorities, and community college trustees, each for its own statutory purposes. See Who regulates a property in North Carolina and Annexation in North Carolina: when a town takes in land.

Utilities, railroads, and other private condemnors

Some private bodies hold the power for public works. The list includes electric power lines and substations, telephone lines, public water and sewer systems, railroads, and pipelines. A private condemnor may not take a burial ground, a usual dwelling house and yard, or a kitchen and garden without the owner’s consent, unless a statute expressly authorizes it.

The Department of Transportation

NCDOT condemns under its own article. The NCDOT acquisition statute vests it with the power to acquire rights-of-way and land by purchase, donation, or condemnation. The procedure is Article 9 of Chapter 136. See Can a data center take your land by eminent domain?.

The public use requirement

Each condemnor must take for a public use or benefit and state that use in its complaint. Chapter 40A grants the power “for the public use or benefit,” and the complaint section requires a statement of the authority and the public use. NCDOT’s complaint must do the same.

An owner can contest more than the price. Chapter 40A keeps the owner’s right to seek an injunction. In an NCDOT case, the judge decides issues other than damages before trial, such as title, the interest taken, and the area taken. Whether a challenge has merit is a question for a condemnation attorney.

Notice, the offer, and the deposit

A city, county, or other public condemnor must give each owner it can find written notice at least 30 days before it files. Under the notice statute, the notice goes by certified mail and states the property, the purpose, the date of filing, and the condemnor’s estimate of compensation.

NCDOT describes its own steps in its right of way guide for owners. A right of way agent meets the owner and shows the plans. An appraiser or a value evaluation sets fair market value, and the owner may go along on the inspection. NCDOT then makes a written offer, and the owner may negotiate.

If there is no settlement, the condemnor files a complaint and deposits its estimate of compensation with the court. The owner may apply to withdraw the deposit as a credit against the final award, under the disbursement statute. Withdrawal does not end the right to contest the amount.

Watch for: The time to answer is short and fixed. Failure to answer counts as an admission that the deposit is full compensation. Call a condemnation attorney when the complaint arrives, not when the deadline nears.

Quick-take: when title passes

Quick-take means title and possession pass when the condemnor files and deposits, before any trial on price. For NCDOT, title vests upon the filing of the complaint, the declaration of taking, and the deposit. NCDOT then records a memorandum of action with the register of deeds.

For local condemnors, the vesting statute splits by purpose. For roads, storm drainage, and some utility purposes, title vests on filing and deposit unless an injunction action is pending. For other purposes, title vests later: when the owner answers about price only, fails to answer, or withdraws the deposit.

How compensation is set

Compensation is set at fair market value on the date of filing. The valuation date section fixes the day the complaint is filed. The project influence section excludes increases or decreases caused by the project itself.

The measure differs by condemnor when only part of a tract is taken.

Condemnor Whole tract taken Part of a tract taken
Local and private condemnors, Chapter 40A Fair market value The greater of the before-and-after difference or the value of the part taken
NCDOT, Chapter 136 Fair market value at the time of taking The before-and-after difference, with consideration of general and special benefits from the project

The pattern jury instruction preface calls that partial-taking difference the most important gap between the two schemes. A jury decides the amount if the parties do not settle.

The answer deadlines differ too. An owner has 120 days from service to answer a Chapter 40A complaint, under the answer statute. An owner has 12 months to answer an NCDOT complaint, under NCDOT’s answer statute.

Take action: Before you answer an offer, see what the record shows about the tract: the parcel lines, the road frontage, and the recorded easements. Start with One parcel. Everything the record says, in order.

Who answers the questions

A condemnation attorney answers the legal questions, and a licensed appraiser answers the value question. The attorney reads the authority and public use, the deadlines, and the title issues. The appraiser values the whole tract before and the remainder after. See Land appraisal: how an appraiser values vacant land and A zoning label is only the beginning.

Fees can shift in some cases. In an NCDOT case, the costs statute requires the court to reimburse the owner’s reasonable attorney, appraisal, and engineering fees when NCDOT cannot condemn or abandons the case.

Some takings happen without a complaint, such as a project that floods land or cuts off access. The owner may file an inverse condemnation action within 24 months of the taking or project completion, whichever is later. That period appears in Chapter 40A and in the NCDOT statute. For access questions, see A road beside the land is not a way in. If you own a large tract near new roads or lines, see Is your land a data-center site?

Key recap

  • Eminent domain lets listed bodies take property without consent, for a public use, if they pay compensation.
  • Chapter 40A lists the local, public, and private condemnors and their purposes. NCDOT condemns under Article 9 of Chapter 136.
  • Local public condemnors give written notice at least 30 days before filing. NCDOT makes a written offer after an appraisal or value evaluation.
  • Title can pass on filing and deposit. The owner may withdraw the deposit and still contest the amount.
  • Compensation is fair market value. Partial takings use different measures under Chapter 40A and Chapter 136, and the answer deadlines differ.

Questions

Can I refuse to sell to the government?

You can refuse an offer, but refusal does not stop a lawful condemnation. The condemnor files suit and deposits its estimate, and a court sets the compensation. A condemnation attorney can say whether the taking itself can be challenged.

Can a utility take my land?

Yes, for the purposes Chapter 40A lists, such as power lines, substations, water and sewer systems, and pipelines. It must pay compensation. It may not take a usual dwelling house and yard or a burial ground without consent unless a statute expressly authorizes it.

Do I have to accept the first offer?

No. NCDOT’s guide for owners says you may negotiate the written offer. If no settlement is reached, the court decides the amount, and the owner may withdraw the deposit in the meantime.

How long do I have to respond to a condemnation suit?

It depends on the condemnor. Chapter 40A gives an owner 120 days from service to answer. Chapter 136 gives an owner 12 months to answer an NCDOT complaint.

References

Primary sources cited on this page, in APA style.

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