Mountain Law: Private condemnation: Unlocking landlocked land
February 7, 2012
The government has the general power to condemn private property for public use, but Colorado law also provides a limited power – the power of “private condemnation” – for landowners to condemn access to their properties for private use.
The authority for private condemnation is found the Bill of Rights to the Colorado Constitution, which provides that “[p]rivate property shall not be taken for private use unless by consent of the owner, except for private ways of necessity ….” This means private property can be taken for private ways of necessity (which are basically access easements). Under the 5th amendment to the United States Constitution, an owner whose land is taken for access must be paid “just compensation.”
The procedure for private condemnation is defined by statute. First and foremost, the party seeking to condemn (the “condemnor”) must own real property that does not already have legal and practical access to a public road – i.e. it must be landlocked. A party opposing condemnation may seek to establish that the condemnor’s property does already have legal and practical access in some manner. It generally doesn’t matter if the condemnor purchased the land knowing it was landlocked because the “necessity” for access belongs to the land and not the owner.
Next, the condemnor must determine the location and perceived value of the proposed access and make a reasonable and good faith effort to acquire the access from its owner (the “condemnee”). If the estimated value of the access is $5,000 or greater, the condemnor must offer to pay the reasonable costs for an appraisal of the access. The purpose of this procedure is to encourage negotiations and settlement.
If the parties are unable to reach agreement concerning a proposed access through negotiation, the condemnor may initiate condemnation proceedings in district court. If there are different possible routes for access to a property, the condemnor can choose which one to pursue. The court will determine preliminarily whether the condemnor is entitled to condemn. If the condemnor does not establish the right to condemn, it can be liable for the condemnee’s attorney fees. The threat of liability for attorney fees can serve as a deterrent to bringing a condemnation action when the authority to condemn is questionable. If the condemnor establishes the right to condemn, it must pay the condemnee the value of the access as determined at trial by either a panel of three disinterested landowning commissioners appointed by the court, or by a jury.
Before the case is determined, the condemnor may ask the court for immediate possession of a proposed access by depositing with the court a sum sufficient to cover the estimated value of the access. The court’s determination of the amount of the deposit does not affect the final determination of the value of the access made by the commission or jury as discussed above.
The law of private condemnation reflects 19th century policies predominant at the time Colorado became a state encouraging the opening of the frontier and the settlement of the West, as well as the view that all land should be put to practical use, and access to a public road is indispensable for that use. In light of more modern policies that sometimes seek to limit growth, it is somewhat surprising (but true) that Colorado law continues to favor those seeking access over those who are burdened by such access. The law of private condemnation is tricky given the constitutional underpinnings, complexity of the statute, and extensive case law. It is best navigated with an experienced attorney.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, business law and litigation. He may be reached at (970)468-4953 or Noah@TheKlugLawFirm.com.
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