Policies and Practices Guiding Exercise of Eminent Domain

1. Law
2. Georgia Code
3. Eminent Domain
4. General Provisions
5. Policies and Practices Guiding Exercise of Eminent Domain

In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for property owners, and to promote public confidence in land acquisition practices, all condemnations and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices:

1. The condemning authority shall make every reasonable effort to acquire expeditiously real property by negotiation;
2. Where the condemning authority seeks to obtain a fee simple interest in real property, real property shall be appraised before the initiation of negotiations, and the owner or his or her designated representatives shall be given an opportunity to accompany the appraiser during his or her inspection of the property, except that the condemning authority may, by law, rule, regulation, or ordinance, prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value;
3. Before the initiation of negotiations for fee simple interest for real property, the condemning authority shall establish an amount which it believes to be just compensation and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the condemning authority's independent appraisal of the fair market value of such property. The condemning authority shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. The condemning authority shall consider alternative sites suggested by the owner of the property as part of the compensation offered;
4. No owner shall be required to surrender possession of real property before the condemning authority pays the agreed purchase price or deposits with the court in accordance with this title, for the benefit of the owner, an amount not less than the condemning authority's appraisal of the fair market value of such property or the amount of the award of compensation in the condemnation proceeding for such property;
5. The construction or development of a project for public use shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling or to move his or her business or farm operation without at least 90 days' written notice from the condemning authority of the date by which such move is required;
6. If the condemning authority permits an owner or tenant to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the condemning authority on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier;
7. In no event shall the condemnor act in bad faith in order to compel an agreement on the price to be paid for the property;
8. If any legal interest in real property is to be acquired by exercise of the power of eminent domain, the condemning authority shall institute formal condemnation proceedings. No condemnor shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his or her real property; and
9. A person whose real property is being acquired in accordance with this title may, after the person has been fully informed of his or her right to receive just compensation for such property, donate such property, any part thereof, any legal interest therein, or any compensation paid to a condemning authority, as such person shall determine.

(Code 1981, §22-1-9, enacted by Ga. L. 2006, p. 39, § 5/HB 1313; Ga. L. 2013, p. 141, § 22/HB 79; Ga. L. 2018, p. 1112, § 22/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "property as part of the compensation offered" for "property as of the compensation offered" at the end of the last sentence in paragraph (3).

Editor's notes.

- Ga. L. 2006, p. 39, § 1/HB 1313, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25/HB 1313, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews.

- For article on 2006 enactment of this Code section, see 23 Ga. St. U. L. Rev. 157 (2006). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

JUDICIAL DECISIONS

Sufficient compliance with O.C.G.A.

§ 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6. White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Public necessity established.

- Record was sufficient to sustain the county's decision to condemn the buffer zone because a public use was established as the county set forth the county's method of isolating methane-contaminated land to county-owned property based on the county's expert testifying that acquiring the buffer zone would eliminate any reasonable probability that methane would migrate onto property owned by the property owner. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

Compliance with O.C.G.A. § 22-1-9. - Summary envisioned by O.C.G.A. § 22-1-9(3) requires, at a minimum, information sufficient, as part of the prompt offer, required prior to the initiation of the negotiations, to provide the property owner with the ability to meaningfully evaluate the offer; simply informing the property owner that the property has been appraised and that the amount offered is the appraised amount, while certainly concise, fails to convey the sum and substance of the basis of the offer. Summerour v. City of Marietta, 338 Ga. App. 259, 788 S.E.2d 921 (2016), aff'd in part and rev'd in part, 302 Ga. 645, 807 S.E.2d 324 (2017).

Insufficient compliance with O.C.G.A. § 22-1-9. - In a condemnation action, the court vacated the trial court's order adopting the special master's return as to the property value because none of the city's offers prior to 2014 satisfied the dictates of O.C.G.A. § 22-1-9(3) and the city took several years to comply with § 22-1-9(3), which bore on the issue of whether the city acted in bad faith, which required further consideration by the trial court. Summerour v. City of Marietta, 338 Ga. App. 259, 788 S.E.2d 921 (2016), aff'd in part and rev'd in part, 302 Ga. 645, 807 S.E.2d 324 (2017).

City seeking to acquire a landowner's property violated O.C.G.A. § 22-1-9(3) because the city failed to disclose the appraisal summary to the owner in a timely manner as required by the statute, instead sending the summary ten months after the summary was requested by the owner; the statute was mandatory, and dismissal of the condemnation petition was the proper remedy. City of Marietta v. Summerour, 302 Ga. 645, 807 S.E.2d 324 (2017).

Public necessity established for condemnation.

- Record supported that the condemnation of the buffer property would serve a public purpose and that the county did not act in bad faith because failing to disclose the extent of methane migration provided no financial benefit for the county since at no time did the county discount the price the county was offering the property owner for the buffer property due to ignorance of the status of methane migration. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

County reset statutory compliance time period.

- Trial court did not err by refusing to dismiss the condemnation petition and not awarding attorney fees to the property owner because while the county violated statutory procedure by failing to obtain an appraisal report prior to initiating negotiations, the discussions had ceased and the county reset the county's opportunity to statutorily comply by obtaining an appraisal and promptly providing the appraisal to the property owner along with an offer to purchase the property at the appraised amount. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

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