Oconee County courthouse in Watkinsville, Georgia (Photo credit: Wikipedia)
ATC Partner Matt Reeves addressed the Oconee County Rotary Club in Watkinsville on March 20, 2012, on the topic of Condemnation/Eminent Domain. Firm corporate attorney Eadaoin Waller is a member of the club. Property owners in fast-growing counties such as Oconee County, Gwinnett County, and surrounding counties frequently encounter condemnation, and Matt and several other ATC attorneys including managing partner Tom Tate and Jim Joedecke have tried many condemnation cases to verdict in recent years. Matt spoke to the club about legal issues concerning condemnation, the Landowners Bill of Rights, and the U.S. Supreme Court’s Kelo decision. Reeves answered questions from Rotarians, and the club made a donation to the “Oconee Wee Read” program in Matt’s honor following the presentation.
Thomas J. Andersen was recently selected by his peers for inclusion in The Best Lawyers in America® 2012 in the field of real estate (Copyright 2011 by Woodward/White, Inc., of Aiken, S.C.).
Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
Georgia may soon be the newest state to adopt legislation regarding transfer fees that are payable to third parties (such as developers, community associations, and nonprofit foundations). HB 129 has been adopted by the Georgia House of Representatives and has crossed over to the Georgia Senate for consideration.
This particular iteration, as approved by the Georgia House of Representatives, permits transfer fees payable to condominium associations, associations that are subject to the Georgia Property Owners Association Act, and associations formed for the purpose of acting as a property owners’ association (as described in the bill), but otherwise prohibits all other transfer fees.
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By: Jim Joedecke, Jr.
For many of us, our current tax assessment may be higher than what we feel our homes are currently worth. The property tax revaluation process rewards property owners with experienced advocates to pursue their legal rights promptly.
The first step in the process begins after January 1st, with the filing of a schedule (provided by the Board of Tax Assessors), wherein you will state under oath what you believe to be the value of your property. Any supporting documentation gathered by you and your attorney will be considered by the Board of Tax Assessors. This will trigger a review by the Board of Tax Assessors, and either a new valuation or appeal. If the Board of Tax Assessors does not decrease your current valuation, your appeal will proceed to the Board of Equalization for a hearing.
If the hearing does not yield satisfactory results, you case could be appealed to Superior Court for litigation. During the appeal process, you and your attorney will gather evidence of your position of value, including expert appraisal testimony, comparable real estate sales, and other evidence of real estate values in your area.
In deciding whether to retain counsel to advocate your rights after you receive or initiate a tax valuation, it is important to keep two things in mind. First, time is not on your side. There are appeal deadlines and other legal “traps for the unwary” that loom in the tax appeal process. Second, if you do not initiate an appeal of your tax valuation, you could be stuck with a higher tax bill for years to come.
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Jim C. Joedecke, Jr. is a Georgia attorney, focusing his practice in civil litigation, particularly business and real estate law matters.
His firm, Andersen, Tate & Carr, P.C., works with all manner of clients in business and personal matters, providing “big firm” sophistication with suburban law firm attention and service.
Copyright © 2009 & 2010, Jim C. Joedecke, Jr. & Andersen, Tate & Carr, P.C.
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By R. Matthew Reeves
Gwinnett County and North Georgia have experienced tremendous success and growth, and along with a vibrant economy comes an increased demand for roads, schools, parks, government buildings, power lines, and other public infrastructure. Our local prosperity has caused real estate values to increase steadily over the years. Land is at a premium in our area. The city, county and state government’s need for more property, combined with a corresponding high monetary value of private property in our area, pits the government’s power of condemnation/eminent domain against the right of private property owners to obtain just and adequate compensation when the government takes their land against their will.
Condemnation is a longstanding power of the government to take land that the government deems necessary for the public good. The government’s power to confiscate private property falls shortly behind the ability to put people in jail and send people off to war, as the government’s strongest powers. While under almost all circumstances the property owner is defenseless against the government’s decision to take their land, property owners do have the right under the state and federal Constitutions to obtain just and adequate compensation when their land is taken from them. The condemnation process is a complex process which was largely crafted by the government for the government’s benefit. Condemnation proceedings, more than almost any other legal proceeding, are filled with numerous deadlines, which could cause you to waive or lose your rights to be compensated if a deadline is missed. It is important to retain legal counsel early in the condemnation process to ensure that your rights to compensation are adequately protected. Even if you are extremely experienced and sophisticated in the field of real estate, the condemnation process is a process in which you need a legal advocate.
While government lawyers fight hard in most condemnation cases to keep the amount of money which the government pays land owners to the lowest level possible, the recent downturn in the economy, with its detrimental impact on government budgets, has created a situation in which the government will fight harder than ever before to keep condemnation payouts low. Also, while one would think that the number of condemnations would decrease during the current economic downturn, a large percentage of the special purpose local options sales tax (SPLOST) is budgeted for road projects, and the federal government is also a consistent source of road building funds. Additionally, governments and power companies are relatively recession-proof, have deep pockets, and have long-range budgets which are not as impacted by economic downturns as purely private businesses.
There are two main types of condemnation proceedings. The first is the “declaration of taking” method, which is utilized in most road-related condemnations. In a road-related condemnation, the government is able to take your land immediately by filing a condemnation lawsuit and depositing an amount of money into the registry of court which the government contends is just and adequate compensation.
The other type of commendation proceeding, which is employed in most other types of condemnations, such as school, park, government building, or power line condemnations, is the “special master” method. In the special master method, the government files a condemnation lawsuit, and the judge assigned to the case appoints a special master who is a local attorney familiar with real estate law, to consider evidence presented by the government and the land owner early in the proceeding. The special master hears evidence from both sides, and determines an initial amount of compensation to the land owner, which the government is required to pay into the registry of court prior to obtaining title to the land which it seeks to condemn.
Very rarely does the declaration of taking or special master method produce a result that is acceptable to landowners. If you have an attorney who is familiar with the condemnation process, you can preserve the ability to seek more compensation following the initial declaration of taking or special master step in the condemnation process.
If you have a larger condemnation case, you can proceed to an “interlocutory hearing”, in which three assessors/appraisers will hear evidence presented by both the government and the landowner, and determine an amount of just and adequate compensation. The three assessor panel is generally comprised of one appraiser selected by the government, one appraiser selected by the landowner, and a third appraiser selected by the two previously selected appraisers. If the three assessor panel’s decision is acceptable to both the government and the landowner, the case will conclude at that time. Either party has the right to appeal the three assessor panel’s decision to a jury trial.
Even if you decide not to participate in a three assessor panel, you are entitled to a right to a jury trial in most condemnation cases, as long as you work with your attorney to preserve your right to a jury trial. Between when the condemnation case is filed, and the jury trial, there is a “discovery process”, which usually last six months or more, in which the government and the landowner exchange documents and conduct depositions of their witnesses.
The way that you, as the landowner, prove the amount of just and adequate compensation, is to present layperson and expert witness testimony that your land was valuable before the taking, and that the taking has left you with a piece of property that is diminished in value. You also cross-examine the government’s witnesses, who almost always allege that your land had a low value prior to the taking and/or that the land has not been damaged by the condemnation. In most cases, it is necessary to retain a real estate appraiser and engineer who are capable of testifying at trial in your favor, in order to establish a credible case for just and adequate compensation. Based on the circumstances of your case, it might be advisable to enlist other experts, such as business valuation experts, surveyors, or building/development expert witnesses.
With all of the procedural and proof hurdles outlined above, it is easy to envision a scenario in which you, as the land owner, end up with unjust and inadequate compensation in a condemnation case. As a result of the pro-government condemnation process traditionally in Georgia, and in response to the United States Supreme Court’s Kelo v. City of New London decision in 2005, the Georgia General Assembly enacted the Landowner’s Bill of Rights in 2006. This recent condemnation reform bill was sponsored by Chairman Wendall Willard of the House Judiciary Committee, for whom I served as legal counsel during the 2008 Georgia General Assembly, and I was able to learn more about this new bill through representing Chairman Willard recently.
The following are recent reforms enacted as part of the Landowners Bill of Rights:
- The government is prohibited from using the power of eminent domain for private development purposes;
- Landowners are now able to participate in the selection of the special master in special master proceedings. Previously, the condemnor’s attorney nominated the special master, who was often the lawyer for another governmental entity, who predictably would award a low amount to the landowner;
- The government is now required to offer prior the full amount its appraiser believes is just and adequate compensation, when a fee simple interest is being acquired, prior to when a condemnation lawsuit is filed. Previously, and still with easements or property interests short of a fee simple interest, the government would frequently only offer a portion of the land’s appraised value;
- When a condemnation displaces you from your home, business, or farm, the government is required to give you 90 days written notice before you are forced to be relocated, and only after the money is paid to you;
- Georgia law now places the burden of proof upon the government to show that a condemnation is necessary for a public use;
- Georgia law now explicitly provides for relocation expenses when you are displaced from your home, business, or farm due to a condemnation. Previously, relocation compensation was only required under limited circumstances, which were governed by federal law.
- Other procedural hurdles for the government to jump through have been enacted, such as increased notice to landowners prior to a condemnation.
While the Georgia General Assembly has attempted to level the playing field in condemnation cases, landowners still have to fight to pursue just and adequate compensation when their land is condemned. There are many traps for the unwary which you can avoid by enlisting an attorney as soon as you learn that a condemnation is on the horizon.
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You may, as long as you include this complete bio with it:
Matt Reeves is a partner in the litigation group at Andersen, Tate & Carr, P.C., a Gwinnett County, Georgia law firm. He focuses his practice on real estate, business and probate litigation.
Copyright © 2010, R. Matthew Reeves & Andersen, Tate & Carr, P.C.
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By: Scott Duncan, a partner in our Commercial Real Estate Department
A business owner makes many critical decisions and one in particular involves the location at which his business is operated. At some point it is likely that he will have to deal with a lease agreement, whether to secure space or to gain revenue from owned space.
Often savvy brokers can steer you through many of the mundane terms of the lengthy document, but you would be smart to involve the services of a real estate attorney who specializes in the drafting and negotiation of leases in order to protect your interests. Specifically, there are issues beyond the standard term, rental rate and identification of the premises that require serious consideration and negotiation in order to avoid potential pitfalls during the term of the agreement.
First, close attention should be paid to how the space “fits” the specific needs of your business operations, including all initial construction of improvements. All parties involved – landlord, tenant, brokers and contractors – need to be clear on what improvements are being made, and the respective obligations for the completion of the construction of the space. For example, know who is responsible for payment for the improvements. No good can come from receiving unexpected, unbudgeted bills for finishing the space. Most of these potential problems are avoided by a thorough review of the construction exhibits and finalization of the plans and budget prior to lease execution.
Second, each party should have clear obligations for the maintenance of the leased premises and building in which the leased premises are located. Commonly the interior space will be maintained by the tenant, while all “structural” and exterior repairs are the responsibility of the landlord. However, you will find many variations on this theme depending on the nature or character of the premises and building. Both parties should fully understand the respective maintenance obligations prior to execution of the lease in order to avoid problems which could result in severe interruptions to your business operations.
Third, although the parties rarely want to focus on issues of default, it makes sense to work through the potential for a default and remedies on the front end. While the landlord’s interest must be protected in the event of a default by the tenant, there may be some provisions which could be negotiated in favor of the tenant to protect the tenant’s right to continue occupancy of the space while working towards a cure of the problem. As we all know, all businesses have ups and downs, and the lease should have some flexibility through cure or grace periods to allow for potential downturns.
Lastly, any special stipulations specific to your needs should be addressed prior to signing the lease. It is less difficult to obtain an extraordinary concession in the process of negotiating the lease, rather than try to gain the approval of the landlord after the agreement has been finalized and the tenant has taken possession of the space. You should analyze every aspect of your business plan for the premises and focus on some common issues, such as:
(i) rights to renew or extend the lease beyond the initial term or early termination;
(ii) use of the premises;
(iii) special equipment or tenant fixtures that would technically violate the terms of the lease;
(iv) signage rights on the building or a monument sign;
(v) special utility needs above building standard;
(vi) the right to make alterations without Landlord’s approval; and
(vii) parking needs and common area usage.
Before entering into a commitment to lease space, make sure that you have exhausted every opportunity to tailor your proposed lease agreement to work well with your specific business needs.