What is the Process of Quick-Take Property Condemnations in North Carolina?
In North Carolina, real property may be "taken" by various government divisions under the power of "eminent domain." Eminent domain is the legal doctrine that allows land to be taken for public use/benefit as long as "just compensation" is paid for the taking. The process of taking property is called "condemnation" (which is distinct from the process of condemning a property for health and/or safety reasons). In North Carolina, there are three types of condemnation proceedings:
- "Quick Take" proceedings by the N.C. Department of Transportation ("NCDOT") -- see N.C. Gen. Stat. § 136.103
- Condemnation proceedings by private parties -- N.C. Gen. Stat. § 40A-2
- Condemnation proceedings by local public agencies -- N.C. Gen. Stat. § 40A-3
This article will focus on quick-take proceedings filed by the NCDOT.The Quick Take Condemnation Process for the NCDOT
Condemnation proceedings filed by the NCDOT creates an immediate transfer of the property that is subject to eminent domain. Essentially, the NCDOT files condemnation proceedings with the local Clerk of the Superior Court and deposits with the Clerk what the NCDOT believes is the "just compensation" for the land being taken. The NCDOT files what is called a "Complaint and Declaration of Taking." At that point, for legal purposes, the land now belongs to the NCDOT. This means that the NCDOT is entitled to immediate possession of the land in question and can require the (former) landowner to vacate the property. In North Carolina, this is called a "quick take" condemnation.
After the "quick take," most of the time, the only legal issue that can be argued between the former landowner and the NCDOT concerns whether the compensation that was deposited with the local court is "just." To challenge whether the compensation is "just," the landowner must file what is called an "Answer" with the Clerk of the Superior Court within 12 months. If a landowner fails to file an Answer within those 12 months, according to the statute, such failure "... shall constitute an admission that the amount deposited is just compensation and shall be a waiver of any further proceeding to determine just compensation."
The Answer may also raise other legal issues with respect to the taking, such as the question of necessary and proper parties, title to the land, amount and area of land taken, etc. It is VERY rare for a landowner to succeed in challenging the taking of their land. However, it IS possible. But, while litigation is pending on the question of the validity of the condemnation, the NCDOT will still have title to and possession of the property in question. See, for example, Town of Apex v. Rubin, 277 N.C. App. 328 (2021). In that case, the landowner successfully abrogated the condemnation proceeding and regained title to her land, but, in the meantime, the Town had laid a sewer pipe across the property. To have the sewer pipe removed, the Court of Appeals held that the landowner must file a trespass action against the Town.
With regard to challenging the compensation paid, that legal issue is presented to the judge assigned to the case for resolution. At some point, the judge will appoint a panel of three commissioners to evaluate the question of compensation and provide a report. That might be sufficient for the landowner and the NCDOT to reach a settlement. But, if not, at a later point, there may be a jury trial on the issue of compensation. In North Carolina, the landowner may take possession of the deposited amount without losing the ability to challenge the amount. This is often called the "first check." If a landowner is successful and wins additional compensation, then a "second check" is provided.
There are at least three steps that generally occur before a condemnation Complaint and Declaration of Taking is filed in the local court. First, typically, the NCDOT -- or other governmental agency contemplating a condemnation proceeding -- will send a surveyor or other person to investigate the land for suitability. This generally involves a "mapping" of the land in question, taking soil borings and the like. This is often the first indication that a taking is possible. Second, assuming that the NCDOT has decided to initiate a condemnation proceeding, the governmental agency must send a representative/agent to conduct "good faith" negotiations over purchasing the land at issue. Finally, the NCDOT must provide a written Notice to the landowner that a condemnation proceeding will be filed. It is enough that the Notice is mailed. So, it is no legal defense to claim that "I did not get the Notice."Count on Hard-Hitting Mecklenburg County Attorneys
For more information, and to schedule a confidential consultation with experienced and dedicated property law attorneys in Charlotte, contact Arnold & Smith, PLLC by using our “Contact” page or giving us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and throughout North Carolina. We have offices in Charlotte, Lake Norman, and Union County.