Should I Talk to the Right of Way Agent If My Land Is Going to Be Taken Through Eminent Domain?

We, here at Arnold & Smith, PLLC, suggest that you seek the legal advice assistance of experienced North Carolina eminent domain and condemnation lawyers before talking extensively to a right of way agent. This is because right of way agents are VERY skilled at what they do, and you, as a landowner, may not fully understand what your legal rights are and what is happening. A site-visit from a right of way agent may be the first time that a landowner becomes aware that their land is threatened by a potential government or private third-party taking. You have rights and potential legal remedies if the government is trying to take your land. Here is some background and some reasons that you should seek legal advice and counsel if a right of way agent pays you a visit.

In North Carolina, land can be taken by government agencies under the power of eminent domain which is the legal doctrine that allows land to be taken. To be lawful, a taking of land must be "for public use" and the government agency must pay "just compensation" for the taking. Just compensation is typically calculated as the fair market value of the property. Generally, the process is also called "condemnation." Condemnation is a legal process that involves certain statutorily required steps and, eventually, involves filing a condemnation lawsuit in the Superior Court of the relevant county.

A right of way agent is a person hired to help the government (or a private third party) take private land for public use. Right of way agents are specifically and extensively trained to do their job. Among the goals set by their superiors is to avoid having to initiate legal proceedings. If the right of way agent can negotiate a sale, this saves the government money since a lawsuit does not have to be filed.

If possible, a right of way agent is also tasked with negotiating a sale of the land at the lowest possible price that can be justified based on fair market value. Sometimes, an appraisal of the property has been done and that is the basis of the offer made to purchase the land. But, sometimes, depending on the value of the land to be taken, no appraisal is done. However, all landowners have a right to obtain their own appraisals.

A right of way agent will show up at a person's property towards the end of the condemnation process. That is, matters have come close to the time when the government agency will file legal proceedings to take your property. As noted, the right of way agent will visit for the purpose of explaining that the land will be taken and to try and negotiate a sale. Let's look at an example. Suppose the North Carolina Department of Transportation ("NCDOT") wants to take a strip of your land to widen a highway or to take all of your land and your home to build a new road. The NCDOT's right of way agent will show up towards the end of the process. Before that, the NCDOT has engaged in extensive advanced planning for the proposed road construction. The right of way agent will typically appear at about the same time as other NCDOT employees show up to conduct a survey of the property, take measurements, soil borings and the like. When the right of way agent visits, the NCDOT has already decided to proceed with the project.

One reason that it is important to seek legal assistance when a right of way agent visits is that agents have deadlines to meet and the result may seem "high-pressure." Right of way agents have a long list of rules that they must follow. For example, NCDOT right of way agents have a 400+ page manual that helps them with their tasks. See here.

Chapter 10 of the manual governs the behavior of an NCDOT right of way agent. Agents are instructed to be friendly, informative, sincere, and attentive to a landowner from whom land is sought. But, at the same time, an agent is instructed that they must adhere to the project schedule so as to complete the specific acquisitions as scheduled. Indeed, the Manual plainly states (p. 254) that "[i]t is very important that all acquisition schedules are met in order that the award of contracts is not delayed." In other words, an NCDOT right of way agent has deadlines to meet and even though agents are instructed to avoid "high-pressure tactics," it may end up seeming that way to the landowner.

Another reason to seek legal assistance is the flood of information that the right of way agent delivers at the first meeting. The NCDOT right of way agents is tasked with doing the following at the initial meeting:

• Explaining to the land owner the necessity for the project and how it fits into the overall highway systems carefully point out to the
• Providing copies plan and project sheets to the landowner
• Explaining how the project will affect the landowner’s property
• Advising the landowner of the acquisition procedure
• Detailing the State's relocation assistance program (if applicable)
• Delivering various informational brochures and draft agreements to sign
• Obtaining the landowner's cooperation with other matters like having surveys, appraisals, inventories and other items accomplished

An “information dump” like this can be overwhelming. Having an ally to help sift through the information can be immensely helpful.

Finally, at some point, the right of way agent will ask the landowner to sign legal documents. Legal assistance is definitely needed for signing any document presented by a right of way agent.

From the foregoing, it can be seen why it is important for landowners to seek legal assistance. A right of way agent works for the condemning authority that is trying to take your land and is trying to pay as little as possible for the land. The agent is an adversary -- not a friend -- no matter how nice they are or appear. They are backed by the government and given extensive training. They have a job to do and strict deadlines to meet. You need an ally to help in the negotiations and to explain your rights.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.