How does the condemnation process work?

    
CONDEMNATION OF LAND PROCEDURE IN TEXAS
   

The process of land condemnation in Texas involves several steps. If the condemnor and condemnee cannot agree on the value of the condemned property, the condemnor must file a petition in condemnation in either the district court or county court at law. Tex. Prop. Code Ann. § 21.003 (West 2004).

 

The trial court will then appoint three special commissioners who hold an administrative hearing and file in the trial court an award that reflects the special commissioners' determination of the value of the condemned land. Tex. Prop. Code Ann. §§ 21.014, 21.015 (West Supp. 2011); § 21.018 (West. 2004). The condemnor must pay the amount of the award to the condemnee or deposit that amount in the registry of the trial court. If either party is dissatisfied with the award, the party may file objections with the trial court. Tex. Prop. Code Ann. § 21.018(a). After citing the adverse party, the trial court then tries the case in the same manner as other civil cases. Id. at 21.018(b). Once objections are filed and citation is served, the special commissioners' award is vacated and may not be reinstated. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984); see also State v. Carlton, 901 S.W.2d 736, 739 (Tex. Civ. App.-Austin 1995, no pet.) (filing of objections coupled with service of citation on the adverse party signals the end of the administrative proceeding and prevents reinstatement of the special commissioners' award). Service of citation triggers the condemnor's legal obligation to proceed to trial and prove its right to condemn the property. Denton Cnty. v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962).

  

SOURCE: DALLAS COURT OF APPEALS - 05-10-00601-CV – 5/9/2012

  

When, as here, the amount of the special commissioners' award deposited by the condemnor into the registry of the court is withdrawn by the condemnee, the issue for litigation is adequate compensation. See State v. Jackson, 388 S.W.2d 924, 925-26 (Tex. 1965). Since adequate compensation is an issue on which the condemnee has the burden of proof, withdrawal of funds deposited in the registry of the court has the effect of shifting the burden of proof and the burden of proceeding to trial to the condemnee. Stuart v. Harris Cnty. Flood Control Dist., 537 S.W.2d 352, 354 (Tex. Civ. App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.); see also Phillips v. Sw. Bell Tel. Co., 559 S.W.2d 464, 465 (Tex. Civ. App.-Houston [14th Dist.] 1977, no writ) (in condemnation proceeding, where the only questions submitted relate to market value and damages, the condemnee has the right to open and close the jury argument). However, the shifting of the burden does not cause the condemnee to become the plaintiff in the trial court. Brammer, 361 S.W.2d at 200.

 

The controversy between the parties in this case arose because the County sought to take the Partnership's real property. The County initiated the condemnation process by petitioning the trial court to appoint special commissioners to determine the value of the Partnership land to be taken. The Partnership did not agree with the award of the special commissioners, and it was entitled to a judicial determination concerning the value of the land. The Partnership's challenge to the special commissioners' awards caused the matter to transition from a special condemnation proceeding to a cause pending in the county court to be tried and determined as other civil cases. Since at that point in the process the special commissioners' award was vacated, it was necessary that the County obtain a judgment from the trial court authorizing the taking of the Partnership's real property at a price that reflected the fair market value of the property. See Tex. Prop. Code Ann. § 2.018(b). Accordingly, the County was the plaintiff in the lawsuit and the Partnership was the defendant. Brammer, 361 S.W.2d at 200.

  

This conclusion is fatal to the County's jurisdictional argument because under Texas law, the forfeiture of a limited partnership's right to transact business does not “prevent the limited partnership from defending an action, suit, or proceeding in a court of this state.” Tex. Bus. Orgs. Code Ann. § 153.309(b)(2) (emphasis added); See Footnote 4 Manning v. Enbridge Pipelines (E. Tex.) L.P., 345 S.W.3d 718, 723 (Tex. App.-Beaumont 2001, pet. denied) (forfeiture of the limited partnership's right to transact business does not prevent it from defending an action, suit, or proceeding in this state). Because the partnership was the defendant in the consolidated condemnation action and was not precluded by the laws governing Texas limited partnerships from defending the action, the County's claim that the trial court was without subject matter jurisdiction must fail. We resolve the County's first issue against it.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00601-CV – 5/9/2012

Condemnation of privately-owned land by government [elsewhere called expropriation]

CONDEMNATION OF REAL PROPERTY FOR PUBLIC USE IN TEXAS

What is the land owner entitled to when the government takes his or her property?

  
Under the Texas Constitution, governmental entities are required to adequately compensate landowners when real property is taken for public use. Tex. Const. art. I, § 17; Cnty. of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004).
  

When a governmental entity condemns real property, the normal measure of damages is the fair market value of the land at the time of the taking. Tex. Prop. Code Ann. § 21.042(b); Zwahr, 88 S.W.3d at 627.  Thus, the central issue in the typical condemnation case is how to measure the market value of the condemned property. See City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001).

 

Market value is “the price the property will bring when offered for sale by one who desires to sell, but is not obligated to sell, and is bought by one who desires to buy, but is under no necessity of buying.” Id.

METHODS FOR DETERIMING FAIR-MARKET VALUE OF REAL PROPERTY

  

The three traditional approaches to determining market value are the comparable sales method, the cost method, and the income method. Id. Regardless of the appraisal method used by an expert, the goal of the inquiry is always to find the fair market value of the condemned property. Id. at 183. An appraisal method is valid only if it produces an amount that a willing buyer would actually pay to a willing seller. Id.

  

Courts have long favored the comparable sales method when determining the market value of real property: If the goal of an appraisal is to ascertain market value, then logically there can be no better guide than the prices that willing buyers and sellers actually negotiate in the relevant market.

  

Under a comparable sales analysis, the appraiser finds data for sales of similar property, then makes upward or downward adjustments to these sales prices based on differences in the subject property. Id. Comparable sales must be voluntary and should take place near in time to the condemnation, occur in the vicinity of the condemned property, and involve land with similar characteristics. Id. at 182.

 

Comparable sales need not be in the immediate vicinity of the subject land, so long as they meet the test of similarity. See City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954). But if the comparison is so attenuated that the appraiser and the fact finder cannot make adjustments for differences, a court should refuse to admit evidence of a “comparable” sale. See, e.g., Holiday Inns, Inc. v. State, 931 S.W.2d 614, 623-24 (Tex. App.-Amarillo 1996, writ denied) (remoteness in time); Urban Renewal Agency v. Georgetown Sav. & Loan Ass'n, 509 S.W.2d 419, 421-22 (Tex. Civ. App.-Austin 1974, writ ref'd n.r.e.) (similarity of neighborhood).

Texas courts have long held it appropriate, in the context of condemnation proceedings, for a jury to consider “all factors . . . which would reasonably be given weight in negotiations between a seller and a buyer” of the property. Cannizzo, 267 S.W.2d at 814, 815 (instructing the fact finder to consider all uses to which the land is “reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future”). Courts should admit as market-value evidence “such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish” market value. Coble v. City of Mansfield, 134 S.W.3d 449, 454 (Tex. App.-Fort Worth 2004, no pet.) (citing State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200 (1936)). See also State v. McCarley, 247 S.W.3d 323, 325-26 (Tex. App.-Austin 2007, pet. denied) (jury determining fair market value in a condemnation proceeding may consider current and reasonably probable future potential uses of the property, and consequential damages that in reasonable foreseeability will result from the condemnor's uses of the condemned property, “as such factors would ordinarily be given weight by willing buyers and sellers and, therefore, would be reflected in the property's fair market value.”). A jury hearing opinion and “all testimony bearing on the issues of [condemned property's market] value” is “enlightened to give weight to the evidence and render its own conclusion.” Reeves v. City of Dallas, 195 S.W.2d 575, 579 (Tex. Civ. App.-Dallas 1946, writ ref'd n.r.e.). This Court noted an expert witness and a jury would consider: [t]he location and environment of the property, the purchase and sale price in an open market of similar property in the same or near-by vicinity, the price that was voluntarily paid for the property taken, the availability of the property for similarly zoned business, the kind and character of occupancy, the encumbrances, contracts, liens, leases, etc., and many other elements . . . .Id.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00601-CV – 5/9/2012

SOURCE: DALLAS COURT OF APPEALS - 05-10-00601-CV – 5/9/2012

Can home owner offer valid testimony on reasonable cost or value of repairs?

  
Testimony to support or challenge reasonble and necessary & costs of repair: Exception to the Property Owner Rule

Eastland Court of Appeals says property owners not qualified to opine on repair cost even if qualified to offer opinion on the value of the property itself under the property owner rule; Rule does not cover repairs; expert testimony it therefore required.    
A party seeking to recover damages measured by the cost of repair must present competent evidence so that the trier of fact is justified in finding that the repairs are necessary to restore the property to its former condition and that the cost of repairs is reasonable and fair. See Hernandez v. Lautensack, 201 S.W.3d 771, 776-77 (Tex. App.—Fort Worth 2006, pet. denied); Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex. App.—Fort Worth 1996, writ denied); Liptak v. Pensabene, 736 S.W.2d 953, 958 (Tex. App.—Tyler 1987, no writ). The magic words “reasonable” and “necessary” need not be used as long as there is sufficient evidence for the trier of fact to conclude that the repairs are necessary and the cost is reasonable. Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex. App.—El Paso 1992, writ denied); Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 694 (Tex. App.—Austin 1989, no writ).

Some courts have held that evidence pertaining to the necessity and reasonableness of repair costs falls within the exclusive domain of an expert. See Legacy Motors, LLC v. Bonham, No. 02-07-00065-CV, 2007 WL 2693863, at *4 (Tex. App.—Fort Worth Sept. 13, 2007, no pet.) (mem. op.); Ha v. W. Houston Infiniti, Inc., No. 01-94-00884-CV, 1995 WL 516993, at *2 (Tex. App.—Houston [1st Dist.] Aug. 31, 1995, writ denied) (op. on reh’g) (not designated for publication); see also Executive Taxi/Golden Cab v. Abdelillah, No. 05-03-01451-CV, 2004 WL 1663980, at *1 (Tex. App.—Dallas July 19, 2004, pet. denied) (mem. op.) (stating that an estimate without the testimony of the person making the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the costs of the repair) (citing Jordan Ford, Inc. v. Alsbury, 625 S.W.2d 1, 3 (Tex. Civ. App.—San Antonio 1981, no writ)). As a general rule, matters involving specialized or technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). The necessity of subsequent, total roof replacements performed immediately after the work performed by and on behalf of Wortham Bros. and the reasonableness of the cost of the subsequent roof replacements are matters of a specialized and technical nature. Accordingly, we conclude that expert testimony was required to establish the necessity and reasonableness of the subsequent roof replacements.

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.

SOURCE: Eastland Court of Appeals - 11-09-00190-CV - 7/28/11

We disagree with the trial court’s determination that the Haffners’ status as property owners qualifies them to offer an opinion on the necessity and reasonableness of repair costs. Under the “Property Owner Rule,” a property owner is generally qualified to testify as to the value of his or her property even if he or she is not an expert and would not be qualified to testify as to the value of other property. Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011); see Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984). This rule is based on the presumption that an owner will be familiar with his or her own property and know its value. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d at 853. This presumption does not extend to the reasonable cost of repairing the owner’s property particularly when those repairs are of a technical or specialized nature.