June 18, 2018

Show Me the Money: Recoverable Damages in Indiana Eminent Domain Actions

Few things are more distressing than learning that your property is being taken by eminent domain. You undoubtedly will have many questions. What is the process by which my property is being taken? How long will the process take? How much of my property is being taken? Rest assured, however, there is one certainty: the condemning authority must pay just compensation for the property taken. In Indiana, if the condemning authority and the landowner cannot otherwise agree to what is considered “just,” the damages recoverable by the landowner are decided in court proceedings.

There are four primary categories of damages recoverable by a landowner in an eminent domain proceeding:

  • The fair market value of the land being taken and any other interests in the land (i.e., easements).
  • The fair market value of any buildings or improvements on the land.
  • Any damages to the portions of the landowner’s property that are not subject to the taking but are otherwise negatively impacted by the taking (e.g., for loss of access or loss of development opportunity).
  • A catch-all category of damages.

See IND. CODE § 32-24-1-9(c). The first two categories are self-explanatory and cover what you would normally expect when your property is taken: compensation for the value of the land and its improvements subject to the taking.

The latter two categories are more nebulous and generally arise when only part of a property is being taken. They also account for the unique nature of real property interests. For instance, consider a highway project like Interstate 69 in Indiana. If you own a business on the property that is being stripped of its prior access to the interstate or other main thoroughfares due to the roadway improvements, then you may have a claim for residual or catch-all damages due to the loss of access, particularly if it negatively alters the highest and best use of the property.

In addition to these general categories of damages, a landowner or other interest-holder may, under certain circumstances, be entitled to recover up to $25,000 of attorneys’ fees to the extent the eminent domain action is litigated through trial. To ensure that the condemning authority shows you all the money to which you are entitled, you should have an experienced eminent domain lawyer on your team. Attorneys with eminent domain expertise can guide you through all aspects of the takings process, ensure that you understand all of your rights and take the measures necessary to obtain all of the damages to which you are entitled.

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