by Bissell Roberts

Kentucky’s Eminent Domain Act of 1976 defines “eminent domain” and “condemned”.  It is the statutory right of the Commonwealth, its agencies, public utilities and other private persons, corporations and businesses authorized by state statute to condemn private property for a “public use.”  Kentucky’s Constitution and the U.S. Constitution require that the condemning authority pay “just compensation” for the private property taken which may involve all of or a portion of the property, including temporary and permanent easements.  

When the condemning authority seeks to condemn all or part of a valuable piece of private property the property owner should retain legal counsel early in the process, because the condemning authority is obligated by law to negotiate in “good faith” with the property owner concerning “just compensation” for the property right(s) to be acquired.  If the parties are unable to negotiate a settlement the condemning authority will file a lawsuit in the local Circuit Court.  As a general rule, the condemning authority will acquire the property rights desired, unless the property owner can convince the Circuit Court that the property is not being acquired for a “public use”.  Kentucky law prescribes specific legal steps that must be taken in an Eminent Domain case.  In the absence of a settlement damages are usually assessed by a unanimous jury verdict.  Typically, the assessment of damages involves opinions expressed by professional real estate appraisers.  Among the considerations may be comparable sales, the “highest and best use” of the property, the possibility of zoning change, change in market potential, tax assessments, enhancement to the remaining property as a result of a partial taking, complete loss of access to the remaining property, fencing costs, and other factors.  Lease terms are important to the both a Landlord and Tenant as they may impact the outcome of a condemnation case for the Landlord and the Tenant.

Kentucky laws are not as favorable to the property owner as the laws of some other states.  As a rule, the property owner is responsible for all of its attorney’s fees, appraiser fees and expenses.  Only in exceptional cases may the property owner recover attorney’s fees from the condemning authority.  Because condemnation cases do not a level playing field for the property owner and the condemning authority, it is very important for the property owner to retain a skilled Eminent Domain lawyer and skilled appraisers to assist in the process.

Our approach is to promptly assess the value of the property owners’ claim and to carefully consider what strategy to follow with respect to pre-litigation negotiations and litigation strategy, after a lawsuit is filed.

We also represent Kentucky property owners and tenants in eminent domain cases involving federal government agencies that involve different procedures and are litigated in United States District Courts in Kentucky.

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