Most right-of-ways obtained by a condemnor (land condemning authority) are done so by a Right-of-Way Agreement. These Agreements are generated by the condemnor and presented to the landowner normally by a right-of-way agent working for the condemnor.
What Mistakes do North Carolina Landowners Make When Signing Right-of-Way Agreements?
The following are some common mistakes we see landowners make in signing these Right-of-Way Agreements without representation:
- Normally a Right-of-Way Agreement contains language that the condemnor will have a temporary construction easement outside of the right-of-way. Most Right-of-Way Agreements do not contain a specified length of time for construction. Without specifying the time, a temporary construction easement can place an undue burden on the landowner’s property.
- A right-of-way agent will normally tell you the intent of the condemnor regarding the use of the property. However, it is not the intent that is important; it is the actual rights that are taken. Remember that the right-of-way is a permanent right-of-way which will be recorded in the Register of Deeds’ Office in the county in which the property is located. Most right-of-ways actually give the condemnor broader property rights than the initial intended use.
- Many landowners feel they have to make a decision immediately because some deadline is approaching. We advise our clients to keep in mind that time is their ally, not their problem. From a landowner’s perspective, it is important to remember the condemnor cannot do anything to property until they have filed a lawsuit and deposited what they propose as fair compensation. This deposit can immediately be withdrawn and the landowner can continue to negotiate or proceed with a jury trial.
- Right-of-way agreements are often signed by a landowner without legal representation because the landowner thinks that they will lose money by retaining an attorney. Keep in mind that at Kirk, Kirk, Howell, Cutler & Thomas, our attorney’s fee is typically a contingent fee based on the increase we can obtain for you. In other words, if we cannot increase the offer made to the landowner prior to the attorney’s representation, there would be no fee.
- Many times landowners do not consider the damages to any remaining land that they may have. For example, if a right-of-way only encompasses 2 acres of the landowner’s 20 acre tract, the remaining 18 acres will more than likely also be damaged as a result of the right-of-way. In court, the proper measure of damages is the fair market value of the property immediately before the taking minus the fair market value after the taking, considering the right-of-way. The difference in those two figures would be the damages incurred. Many right-of-way agents talk only in terms of the land taken.
Have You Been Asked to Sign a Right-of-Way Agreement?
If you have any questions or concerns, our Raleigh attorneys Philip Kirk and Joe Howell at Kirk, Kirk, Howell, Cutler & Thomas have extensive knowledge in the trial and settlement of eminent domain law cases in North Carolina and will be glad to assist you. Call 919-615-2473
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