Phases of an Eminent Domain Proceeding in Colorado

At a Glance

• An eminent domain case or condemnation is a specialized proceeding that advances in four phases.
• A typical condemnation begins when a condemning authority sends a notice of intent or an offer to acquire property.
• Once you receive a notice of intent, you should hire a specialized appraiser with eminent domain experience to determine the value of your property.
• After the condemning authority files its petition in condemnation in a court, the case proceeds in two phases. First up is the immediate possession phase, which results in the transfer of title to your property. You must raise all objections to the condemnation at this phase at an immediate possession hearing. Alternatively, you can enter into an agreement to transfer title (typically called a stipulation) between you and the condemning authority.
• The last step is to determine the fair market value of your property at a valuation trial. You are entitled to request a jury. Otherwise, the value of your property will be determined by a commission or by the parties’ agreement.

In Colorado, eminent domain (also known as condemnation) proceedings take place in several phases. These proceedings are similar to, but not the same as, other civil trials. Few attorneys — let alone property owners — have experience with the special statutory procedures that apply in eminent domain cases. Here is a simplified introduction to the phases of an eminent domain proceeding in Colorado.

For more information on what to do when facing a government taking and how to protect your rights, read the companion alert, “What to Do When Facing a Government Taking: FAQs on Colorado Eminent Domain.”

What Happens in an Eminent Domain or Condemnation Proceeding?

Colorado eminent domain proceedings take place in four phases, as displayed in the flowchart below. Understanding the basic actions that take place in each phase is crucial to navigating the eminent domain process.

The Notice of Intent Phase

Colorado eminent domain proceedings typically begin by a condemning authority sending a notice of intent or an offer to acquire to the owners of a property that it is seeking to take. The government or private company will likely contact you and make one or more offers to pay for the property it wants. You may receive several letters, sometimes called a notice of intent to acquire, an initial offer letter and/or a final offer.

The Appraisals and Negotiations Phase

Once you receive a notice of intent, it’s very important to hire an experienced eminent domain appraiser to determine the value of your property. General real estate appraisers, for example those who assist in valuing property for banks regarding mortgages, typically do not have knowledge of eminent domain rules. Failing to hire an appraiser with eminent domain experience will often result in a lower value for your property. This is true even if the government offers to let you see its appraisal of your property, because the government’s appraiser may be undervaluing your property. If the value of the property taken is more than $5,000, the condemning authority is required to reimburse you for the reasonable costs of your own appraisal.

If negotiations don’t work, the condemning authority will make a final offer, which you may choose to accept. If you don’t, the condemning authority will likely file a petition with the court to acquire the property called a petition in condemnation.

The Immediate Possession Phase

Once the condemning authority files its petition in condemnation, the first step relates to possession, or transferring title to your entire property or a portion of your property, whatever the case may be. This can happen either at an immediate possession hearing or via an agreement (typically called a stipulation) between you and the condemning authority. You have the right to demand an immediate possession hearing to raise challenges to the condemnation, and you waive those challenges if you do not raise them at the hearing. At the immediate possession hearing, a court will evaluate whether the government or private company has authority to condemn your property.

If the condemning authority obtains immediate possession, either at a hearing or through an agreement with you, the condemning authority can start using your property and constructing its project. At the same time, the condemning authority will pay a deposit to the court for safekeeping, and you can usually withdraw some or all of the deposit. As long as the ultimate valuation award is more than the deposit, you can keep the deposit.

The Valuation Phase

The last step is to determine the fair market value of your property. You are entitled to request a jury. Otherwise, the value of your property will be determined by a commission or by the parties’ agreement. Typically, both sides will present expert witnesses, usually appraisers, who will give opinions about the value of your property. You can present arguments and evidence regarding the amount of just compensation you should receive.

Consider Engaging Experienced Counsel

An experienced eminent domain attorney can identify appropriate arguments and evidence to help you get the fair market value of your property. Remember, eminent domain proceedings have their own timelines and procedures, so they are not like other lawsuits. Having an experienced eminent domain attorney can help ensure you are fairly represented throughout the entire condemnation process.