South Carolina Eminent Domain & Condemnation Law and Frequently Asked Questions
What is Eminent Domain?
Eminent domain is the government’s right to acquire private property for public use. The governmental entity may be a federal, state, county or city government, school district, hospital district or other agencies. The taking of property may be with or without the permission of the owner. The Fifth Amendment to the Constitution provides that “private property [may not] be taken for public use without just compensation.” The Fourteenth Amendment added the requirement of just compensation to state and local government takings. The eminent domain process usually involves passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. The owner who believes that just compensation is not being offered for the taking of their property may bring suit against the governmental agency. However, by depositing the amount of the offer in a trust account, the government becomes owner while a trial is pending. Some of the public uses supporting eminent domain include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings.
How does eminent domain occur?
There are eminent domain laws which provide who can exercise the right of eminent domain and for what purpose. If the easement or property cannot be purchased, either the utility, city or county or state can condemn property if it is for an approved purpose. Utilities generally have eminent domain rights sometime in cooperation with a governmental agency. To use the power of eminent domain, the condemnor must be authorized, by statute or ordinance, to take the property for a specific public purpose. The condemnor must also try to buy the property from the property owner by good faith negotiation.
What does U.S. Constitution – Amendment 5 say about Eminent Domain?
Amendment 5 – Trial and Punishment, Compensation for Takings
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
What is the South Carolina Eminent Domain Procedure Act?
The South Carolina Eminent Domain Procedure Act provides the eminent domain laws of the state[i]. A condemnor may commence an action for the acquisition of an interest in any real property necessary for any public purpose. The provisions shall constitute the exclusive procedure whereby condemnation may be undertaken in the state[ii]. Any service required may be made by certified mail with return receipt requested or by any other means permitted by law for service of a summons in civil cases. When service is made by certified mail, the date of service must be the date of delivery, refusal, or last attempted delivery as shown on the return receipt[iii].
A condemnor may take possession of property:
- at any time upon receipt of written consent of the record owner or owners of fee simple title to the property;
- upon payment to the owner of mutually agreed compensation;
- upon deposit with the clerk of court in the county in which the property to be condemned is situated, the amount stated in the Condemnation Notice as just compensation for the property, the amount having been determined by the condemnor pursuant to § 28-2-70(a) before initiating the action;
- upon payment to the owner or deposit with the clerk of court of the amount determined by the appraisal panel or awarded by the judgment in the condemnation action[iv].
In the event of conflict between the South Carolina Eminent Domain Procedure Act and the South Carolina Rules of Civil Procedure, the act shall prevail[v]. Any condemnor may institute an action under this chapter for the acquisition of an interest in any real property necessary for any public purpose. The provisions of this act constitute the exclusive procedure whereby condemnation may be undertaken in the state[vi].
If the landowner rejects or does not accept the amount tendered as just compensation within the thirty-day period, then the condemnor may file the condemnation notice with the clerk of court and deposit with the clerk the amount of just compensation stated in the notice. If the condemnation notice is filed with the clerk of court, the clerk shall charge a fee for filing the notice which must be the same as the fee charged for filing a summons and complaint. The condemnor then shall serve written notice of the action upon the condemnees and may proceed to take possession of the property or interest in the property described in the condemnation notice pursuant to Section 28-2-90. The condemnor may not abandon the condemnation action after taking possession if material alterations have been made in the property, except with the consent of the landowner[vii].
Within twenty days of the appointment of the third member, the appraisal panel shall determine the just compensation amount for the property taken and shall report the determination in writing to the condemnor. In making this determination, the appraisal panel shall conduct an informal proceeding and shall consider all relevant evidence and information as may be offered by the condemnor or the landowner. Within ten days of receipt of the appraisal panel’s report, if the condemnation notice has not already been filed with the clerk of court and the amount tendered therein deposited with the clerk, the condemnor shall file the condemnation notice and a copy of the appraisal panel’s report and deposit the amount determined by the appraisal panel with the clerk; or if the Condemnation Notice has already been filed and the amount tendered therein deposited with the clerk of court, the condemnor shall file a copy of the appraisal panel’s report with the clerk and, if the amount determined by the panel exceeds the amount already deposited, excluding any interest thereon, shall deposit the amount of the excess with the clerk. The condemnor must serve upon the landowner written notice of the amount determined by the appraisal panel and of the filing of the condemnation notice and deposit of the amount determined. The notice shall also state whether the condemnor accepts the determination of the appraisal panel or appeals therefrom and must be in the form prescribed by § 28-2-290. If the notice required by this section states that the condemnor accepts the determination of the appraisal panel, then within thirty days of receipt of the notice, the landowner must elect in writing served upon the condemnor either to accept the amount determined by the appraisal panel or to appeal from the determination. A failure to elect constitutes an acceptance of the amount so determined[viii].
The appellant must be the movant on appeal from the determination of the appraisal panel, he/she shall have the burden of proof, and he/she shall have the right to open and close, except that notwithstanding which party is appellant, the condemnor shall first offer one witness to describe the property being taken and the purpose thereof. In the event both the landowner and the condemnor appeal from the determination of the appraisal panel, the landowner is deemed to be the appellant[ix].
For the purpose of determining the value of the land sought to be condemned and fixing just compensation in a hearing before a judge or in a trial before a jury, the following evidence (in addition to other evidence which is relevant, material, and competent) is relevant, material, and competent and may be admitted as evidence and considered by the judge or the jury:
- evidence that a building or improvement is unsafe, unsanitary, or a public nuisance or is in a state of disrepair and evidence of the cost to correct the condition, even if no action has been taken by local authorities to remedy the condition;
- evidence that any state public body charged with the duty of abating or requiring the correction of nuisances or like conditions or demolishing unsafe or unsanitary structures issued an order directing the abatement or correction of any conditions existing with respect to the building or improvement or demolition of the building or improvement and of the cost of compliance with an order;
- evidence of the last assessed valuation of the property for purposes of taxation and of any affidavits or tax returns made by the owner in connection with the assessment which state the value of the property and of any income tax returns of the owner showing sums deducted because of obsolescence or depreciation of the property;
- evidence that the property or improvement is being used for illegal purposes or is being so overcrowded as to be dangerous or injurious to the health, safety, morals, or welfare of the occupants and the extent to which the rentals therefrom are enhanced by reason of the use;
- evidence of the price and other terms upon any sale or the rent reserved and other terms of any lease or tenancy relating to the property or to any similar property in the vicinity when the sale or leasing occurred or the tenancy existed within a reasonable time of the hearing.
Upon motion of either party, the court shall permit the jury to inspect the property which is the subject of the action, and if the trial is without a jury, the court shall make the inspection[x].
In determining just compensation, only the value of the property to be taken, any diminution in the value of the landowner’s remaining property, and any benefits as provided in § 28-2-360 may be considered[xi]. Unless the persons served with the condemnation notice agree in writing as to whom just compensation must be made and paid, the appraisal panel determination, verdict, or judgment must be made jointly to all the parties and may be paid to the clerk of court. Upon making the payment, the condemnor’s obligation to pay interest upon the funds shall terminate. The payment of the funds so awarded must be held by the clerk of court pending the final order of the court of common pleas in an equity proceeding to which all persons served with the condemnation notice must be necessary parties. From the order of the court of common pleas there may be an appeal as provided for appeals from the court in equity cases[xii].
If in the action challenging the condemnor’s right to take, the court determines that the condemnor has no right to take all or part of any landowner’s property, the landowner’s reasonable costs and litigation expenses incurred therein must be awarded to the landowner. If the court determines the right to take issue was not raised and litigated in good faith by the landowner, the court must award the condemnor the reasonable costs and litigation expenses incurred therein. A landowner who prevails in the trial of a condemnation action, in addition to his/her compensation for the property, may recover his/her reasonable litigation expenses by serving on the condemnor and filing with the clerk of court an application therefor within fifteen days after the entry of the judgment.
The application shall show that the landowner has prevailed, state the amount sought, and include an itemized statement from an attorney or expert witness representing or appearing at trial in behalf of the landowner stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which recovery is sought. If requested by any party or on its own motion, the court shall hear the parties with respect to the matters raised by the application and shall determine the amount of litigation expenses to be awarded, which must be set forth in a written order to be filed with the clerk of court which becomes part of the judgment. The court, in its discretion, may reduce the amount to be awarded pursuant to this section, or deny an award, to the extent that the landowner, during the course of the action, engaged in conduct which unduly and unreasonably protracted the final resolution of the action or to the extent the court finds that the position of the condemnor was substantially justified or that special circumstances make an award unjust. If the condemnor abandons or withdraws the condemnation action in the manner authorized by this chapter, the condemnee is entitled to reasonable attorney fees, litigation expenses, and costs as determined by the court[xiii].
All state authorities, commissions, boards, or governing bodies established by the state of South Carolina, which have been, or may be created in the future, to develop waterways of the State for use in intrastate, interstate, and foreign commerce; to construct, maintain, and operate powerhouses, dams, canals, locks, and reservoirs; to produce, transmit, sell, and distribute electric power; to reclaim and drain swampy and flooded lands; to improve health conditions of the State; and to reforest watersheds, and for which purposes the acquisition of property is necessary, have the right of eminent domain[xiv].
[i] S.C. Code Ann. § 28-2-10.
[ii] S.C. Code Ann. § 28-2-60.
[iii] S.C. Code Ann. § 28-2-80.
[iv] S.C. Code Ann. § 28-2-90.
[v] S.C. Code Ann. § 28-2-120
[vi] S.C. Code Ann. § 28-2-210.
[vii] S.C. Code Ann. § 28-2-230.
[viii] S.C. Code Ann. § 28-2-260.
[ix] S.C. Code Ann. § 28-2-320.
[x] S.C. Code Ann. § 28-2-340.
[xi] S.C. Code Ann. § 28-2-370.
[xii] S.C. Code Ann. § 28-2-460.
[xiii] S.C. Code Ann. § 28-2-510.
[xiv] S.C. Code Ann. § 28-3-20.