Responding to the Offer
a. Are there benefits to securing a team of experienced advisors?
Yes, definitely. A team of advisors experienced in condemnation matters can help you achieve just compensation, advise you on relocation issues, and assist you with tax planning in regard to the proceeds of condemnation. Your team may include a condemnation attorney, appraiser, relocation specialist, real estate broker, and tax planner. In certain circumstances, you may need to also enlist the services of surveyors, land use planners, architects, and engineers.
In addition, the Oregon legislature in ORS Chapter 35 has placed very specific requirements on the government when it seeks to condemn property. Failure by the government to strictly comply with these requirements may necessitate dismissal of the action and entitle you to reasonable costs and attorney fees. ORS 35.335. An attorney experienced in condemnation matters can quickly evaluate the government’s compliance with such requirements and determine whether dismissal is appropriate.
An added and important benefit to securing an attorney early in the process, and coordinating your team through the attorney, is that much, if not all, of the correspondence and documentation generated by the team can remain confidential and shielded from disclosure to the government.
b. Will it be cost-effective to hire an attorney instead of just accepting the offer?
The Oregon legislature has provided that a property owner is entitled to recover reasonable costs, including those related to hiring an expert appraiser, as well as attorney fees from the government if:
- The government abandons the condemnation lawsuit or the lawsuit is dismissed for the government’s failure to comply with ORS Chapter 35;
- The property owner obtains just compensation that exceeds the government’s highest written offer prior to filing the condemnation lawsuit; or
- The court finds the government’s first written offer was not a good-faith amount the government reasonably believed to be just compensation. ORS 35.335, 35.346(7).
An experienced condemnation attorney’s goal is to obtain for you just compensation, usually well beyond the government’s highest written offer before filing the condemnation lawsuit, plus a recovery of your attorney fees and costs as determined reasonable by a court.
c. How much time do I have to respond to the offer? Do I have to accept or reject the government’s offer within this time?
The government must give you at least 40 days to respond to the offer before filing a condemnation lawsuit. ORS 35.346(1). It is important to note, however, that you are not required to respond to the offer. If you fail to respond, the offer will be considered rejected. The government may initiate the condemnation lawsuit, but negotiations will most likely continue regarding fair market value and the government’s acquisition of title up to and through the litigation process.
d. If I reject the offer or do not respond to it, will the government lower its offer?
No, the government generally cannot lower its offer as a negotiation strategy. For practical purposes, the government’s initial offer represents a floor for the negotiations regarding just compensation. As a matter of law, the government cannot lower the amount of its initial offer except upon an order of the court, and that order cannot be entered less than 60 days before trial. ORS 35.346(2).
e. Should I obtain an independent appraisal?
Yes, in most circumstances, you should obtain an independent appraisal. Though the appraiser contracted by the government is a professional and bound by professional standards, he or she is hired by the government. You also need an analysis performed by an independent professional. Further, if you know the government’s offer is imminent, obtaining an independent appraisal before receiving the offer will, in certain situations, provide you and your advisors the necessary information to develop a proper negotiation strategy.
If you reject the government’s offer and obtain a separate appraisal, you must disclose a copy of the appraisal to the government at least 60 days before any trial or arbitration. ORS 35.346(4). If you fail to disclose an appraisal to the government, you may not be able to use the appraisal at the trial or arbitration to help establish just compensation. ORS 35.346.