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The J.D. Admissions Process

Admission to Harvard Law School is competitive. Last year approximately 7,300 persons applied for approximately 550 places in the entering class. We understand that applying to law school is costly, time-consuming, and can be anxiety-producing. Most admitted candidates graduated in the top ten percent of their college class, have LSAT scores in the top five percentiles, and have substantial accomplishments in work or outside activities, although the number of candidates who meet these characterizations far exceeds the number of offers of admission we can make. We look far beyond the "numbers" to select an entering class and admit some candidates who do not have such high college or LSAT standings but whose combined academic and personal achievements are comparable nonetheless. We have long been committed to a policy against discrimination based on race, color, creed, national origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam-era or disabled veteran.
The Selection Process for J.D. CandidatesUndergraduate Education/Academic Record
We want our graduates to be educated, cultured, and caring lawyers, in the best tradition of the learned profession. We realize that the foundation of liberal culture must usually be laid in college. While we prescribe no fixed requirements with respect to the content of pre-legal education, we take into account the nature of college work done as well as the quality of demonstrated academic performance.
As preparation for law school, a broad college education is usually preferable to one that is narrowly specialized. We look for a showing of thorough learning in some wide cultural field of your choice, such as history, economics, government, philosophy, mathematics, science, literature or the classics, rather than a concentration in courses given primarily as vocational training. Some academic disciplines tend to emphasize practical aspects of a subject rather than the fundamental theories surrounding it. We consider that those programs approaching these subjects on a more theoretical level, with attention to educational breadth, are better preparatory training for the legal profession than those emphasizing the practical.
Undergraduate academic performance is a significant indicator of potential success in law school, and we are convinced that one of the primary considerations for admission must be scholarship. Besides being one measure of general ability, a strong scholastic record indicates persistence, organization and motivation - all important factors that have few direct measures. The cumulative grade point average is one measure of scholarship, and not always the most accurate one. A weak start in college may be irrelevant if subsequent performance is outstanding. Trends are important, in both directions, as are the quality and difficulty of the courses taken. Unusual creativity, exceptional research skills, analytical prowess and other intellectual factors enter in where they can be ascertained, and are not always reflected on a transcript.
The LSAT
The Law School Admissions Test (LSAT) is also a useful aid in the selection process. It is designed to measure some of the acquired skills that are important to successful law study and, within broad limits, provides a reasonable assessment of these factors. Standing alone, the LSAT provides only a partial evaluation of anyone's qualifications for law study. When combined with other assessments, the LSAT is helpful in assessing individual promise and in making comparisons among those who compete for admission.
Non-Quantitative Factors
Quantitative factors, while informative, do not play a decisive role in our selection process. We have no computational methods for making admissions decisions, no mechanical shortcuts, no substitutes for careful assessment and good judgment. We try to assess a number of intangible qualities - energy, ambition, sound judgment, and high ideals. We actively encourage applicants from minority groups, women, and others who are well qualified but who might not seek admission for financial, geographic or other reasons. Information concerning economic, social or educational obstacles that have been successfully overcome often helps us to understand an applicant's achievements in a meaningful perspective. We have also found merit in allowing several strong factors to offset another factor on which you may perform only modestly in comparison with other applicants. We are often asked whether we give any preference to children of Harvard Law School graduates. Our practice is to take such status into account in borderline cases. This may help a few candidates each year, and applicants who fall into this category should make note of this in their applications.
Diversity of interest, background, and experience among members of each entering class is an important objective. Your personal statement is important in this regard. We are interested in what you find interesting; what is important to you; what you are good at; your ideas, hopes, and dreams.
Applicant Pool
We expect a volume of applications in line with recent years for the class entering in September 2005. Based upon past experience, most applicants will meet the minimal standards any admissions system might establish. Our selection process involves comparison of multiple factors among those who apply. We see our task as selecting the best class from a large pool of exceptionally well-qualified candidates. Defining "best" in this situation is a delicate and complex task. We use as many definitions as we can reasonably formulate and rationally evaluate to assemble an entering class that is talented, diverse, and stimulating. A careful evaluation of individuals' past accomplishment and future promise is at the heart of the process.
It is hard to measure how well an admissions system works. However, our classes in recent years have been able, interesting, lively, energetic, and promising. We are confident that all those admitted are capable of handling the work. The low rate of attrition (below one percent) confirms this.
While our methods are not perfect, admissions is a complex process, and we do our best to be sensible, flexible, and understanding.
Page last updated: Wed, Oct 20, 2004, 16:34:25 EDT. HLS Contact Information
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Still on Eminent Domain

Executive Summary of Property Owners' Rights
Fair Market Value. You have the constitutional right to receive “just compensation” when an agency acquires your property; in other words, to receive the “fair market value” of the land or property acquired. Just compensation can include compensation for a decrease in the market value of the portion of your property that remains when part of your property is acquired, if that decrease in value occurs because of the public improvements planned. In some cases, just compensation can include damages caused by the project to property that is not acquired, but which is damaged by the project.
Full Payment. You have the right to receive full payment for “just compensation”, in the full amount that is determined by negotiation or by a court, jury, mediation, or arbitration before the agency takes title to your property.
Early Occupancy. If the agency wishes to occupy your property before “just compensation” can be agreed upon, you are entitled to receive the money that the agency is offering you for the acquisition of your property before they occupy it. In such cases, you may still reserve the right to have the “just compensation” determined by a court, jury, mediation, or arbitration and to receive more compensation if you are found to be entitled to more.
Public Documents. You have the right to examine and make copies of any public documents, including project maps, specifications, or other project materials in the agency’s possession.
Open Meetings. You have the right to attend any meetings held by an elected or appointed council or commission to discuss the project and to tape record the proceedings. You do not have the right to speak unless the meeting is a public hearing. You may be legally excluded if the officials move to go into an executive session to discuss the acquisition of real property or to discuss imminent legal proceedings.
Other Property Owners. You have the right to request that the agency provide a list of any other property owners whose property is also being acquired for the project.
Public Purpose. You have the right to know for what public purpose your property is being acquired and to challenge the necessity of the acquisition. This must be done early in the process, however. You are entitled to know that the project has been designed to accomplish the greatest good with the least private injury.
Offer and Negotiation. You have the right to negotiate with the agency before condemnation proceedings begin. For that purpose, the agency is required to provide you with a written determination of the value of the property that is to be acquired from you and of any damages that will a rise as a result of the acquisition.
Appraiser. You have the right to accompany the appraiser hired by the agency during his or her inspection of your property and to talk to the appraiser before a value is reached.
Appraisal. You have the right to know the amount of the appraised value of your property and of any damages assessed and to request a copy of the appraisal report. Homeowners are entitled to a copy on request. Business and farm owners are entitled to know what appraisals exist and why they are not allowed to see them during negotiations. If the matter goes to formal mediation, arbitration or trial, you will be entitled to see the appraisal well before the hearing.
Other Damages. Your right to just compensation includes payment for the land, and also for any improvements on the land such as fences, landscaping and other things attached to the land if they contribute value to the property. Just compensation also includes any additional net lost value of any remaining property that you continue to own. (Known as “severance damages”) You may also be entitled to just compensation for any special and unique damage done to any portion of your property that is not acquired for the project. The agency may also be required to pay “rent” for any temporary occupancy of any portion of your property that is not acquired, but which must be used by the agency or its contractors during construction of the project.
Relocation Costs. You have the right to be paid certain relocation expenses from the agency if it requires you to move your home, farm, or business as aresult of the condemnation. These amounts are determined by statute, but may be mediated or arbitrated if, after using whatever appeals processes the agency provides to review such matters, a dispute stillexists. Tenants are entitled to relocation costs, just as owner-occupants are.
Replacement Dwelling. Homeowners who are displaced have the right to be offered a comparable replacement dwelling that is safe and clean and reasonably close to your employment and public services. If the just compensation offered is not enough to pay for a suitable and comparable replacement dwelling, then additional compensation may be due.
Displaced Business or Farm. You have the right, if your small business or farm is displaced by the project, to receive the agency’s assistance in identifying replacement properties available for sale and located within the agency’s jurisdiction.
Prior Notice. Unless an emergency exists, you have the right to receive 90 days written notice before a move is required.
Rollback Taxes. You have the right to have the agency pay any greenbelt rollback taxes if condemnation results in your land losing greenbelt status.
Ombudsman. You have the right to consult with the State of Utah’s Property Rights Ombudsman and to inquire about your rights and responsibilities in eminent domain proceedings. He can be reached tollfree at 1-877-882-4662 (1-877-UTAH OMB) .
Second Appraisal. You have the right to an additional appraisal at the agency’s expense, if you request it, and the Ombudsman, or a mediator or arbitrator appointed by him, considers the appraisal reasonably necessary to resolve a dispute about just compensation.
Alternate Dispute Resolution. If the amount of just compensation cannot be negotiated, the agency has the right to institute legal action against you. If you would rather arbitrate eminent domain issues than go to court, you have the right to request mediation or arbitration through the Ombudsman. If theOmbudsman determines that mediation and/or arbitration is appropriate, you have the right to insist on that process even if the agency objects. The results of any arbitration held can be appealed to the district court, so it is not binding unless the parties agree to make it binding or neither side appeals a decision by the arbitrator or arbitrators.
Evidence. You have the right to offer any relevant and admissible evidence at arbitration or trial,including the use of expert witnesses, to justify the amount of just compensation you consider appropriate. Any witness (other than a property owner) who testifies to property value must be a licensed appraiser.
Disclosure and Review. You have the right to know about and examine any evidence that will be used by the agency to establish the amount of just compensation prior to formal mediation, arbitration or trial. This includes copies of any appraisals the agency has obtained to determine just compensation and other evidence they plan to offer.
Testify. As a property owner, you have the right to testify at arbitration and/or at trial regarding the value of your property.
Cross Examination. You have the right at arbitration or trial to cross examine the expert witnesses that the agency relies upon in establishing the amount of just compensation that it claims to be fair. The agency can cross examine any witnesses you call as well .
Appeal. You have the right to appeal to the district court if you are not satisfied with an arbitrator’s determination.
Jury Trial. If the matter goes to court, you have the right to choose to have the amount of compensation determined by a jury rather than by a judge.
Appellate Review. You have the right to appeal a district court decision to an appellate court, if appropriate.
Please feel free to call the Property Rights Ombudsman if you have any questions about these rights.
Definition and Purpose of Eminent Domain
Under Utah law, there are a variety of purposes or reasons for which property can be acquired by eminent domain. The State, through legislation, has delegated its condemnation powers to various agencies, political subdivisions, and even private companies and individuals. These include the Utah Department of Transportation, cities, counties, special districts, redevelopment agencies, and school districts. Private corporations such as public utilities, canal companies and mining and lumber companies and railroads can use the power of eminent domain to acquire private property. Even land-locked private property owners can use eminent domain to acquire access to their land for a residence or farm. For purposes of this summary , all these potential condemnors will be referred to as the “Agency." The U.S. and Utah Constitutions basically provide two major protections to property owners: (1) that the property must be acquired for a public use or purpose;and (2) that the property owner must be paid “just compensation” for private property. “Just Compensation” means that you are to be paid the “fair market value” of any property actually taken by the Agency as well as any net loss of value in the property remaining when only a portion of a larger parcel is acquired. Although that concept may appear simple, its application is sometimes very complex. Each piece of property is unique and “just compensation” must bedetermined on a case-by-case basis. The term “public use” generally means that the property will be used or available for public use after it is acquired. Examples of such public uses include condemnation for roads, schools, parks, public buildings, or to eliminate a “blighted area” and accomplish redevelopment. “Public use” does not mean that the property must be owned by a government entity. Many uses have been statutorily designated by the Utah legislature as a public use even though they appear private in nature. Property can be in private ownership after condemnation, and used for power lines and private canals, commercial shopping centers, industrial parks and hotels, etc., so long as the condemnation was to accomplish a “public use” as defined in statute. Incidental private benefits can result from a project that will nevertheless be considered as a “public use.
The Condemnation Process
It may be necessary in certain situations that private property be acquired for projects that improve the general welfare of the community even if the property owner refuses to sell or cannot agree with the government on the amount of just compensation to be paid. When negotiations to acquire the property fail and an agreement cannot be reached, the Agency can proceed in court to acquire the property. The property owner has the right to use an alternative dispute resolution process outside of court, if preferred, but some third party entity will eventually determine the amount of just compensation that is to be paid of the condemnor and the property owner cannot otherwise agree.
Project Planning - Public Meetings
The acquisition process begins when an Agency determines that the construction of a necessary public project will require the acquisition of private property and that it has the funds or funding process to acquire it. Sometimes property owners are not notified of pending projects until the process of land acquisition begins. This is not necessarily illegal, although there are special notice requirements if your property is being considered for redevelopment, where special advance notice is given and public hearings are required. If you become aware ahead of time of a project that may involve your property, it is in your best interest to stay informed during the planning of the project. You have the right to attend meetings held by a city council, county commission, redevelopment agency board or other appointed body and there you may listen to them discuss the project. Sometimes public meetings are required to allow landowners to comment before final decisions are made. In limited cases, an Executive Session can be held to discuss the acquisition of property and you will be excluded from those meetings. If that happens, you may still be entitled to information about the closed meeting. Review Chapter 52-4 of the Utah Code (Open and Public Meetings Act) and/or call the Property Rights Ombudsman if you would like to know more information about open and public meetings. A separate summaryt like this one has been prepared by the Ombudsman to inform the public about open meetings and public documents.
Government Records - GRAMA
Citizens are legally entitled to access to public, non-privileged documents under the Government Records Access and Management Act, or “GRAMA” (Chapter 63-2 of the Utah Code). This Act may be helpful to you in understanding the proposed project and how it will affect you and your property. If your informal requests for information are not honored and you are not given all the documents you need with an informal request, you can make a formal demand under GRAMA. GRAMA applies only to governmental agencies, however, and not to private corporations. You have the right to examine and make copies of maps and most other relevant materials in the possession of a government entity regarding the project and affected property. You may also request that the Agency provide a list of any other property owners whose property must be acquired for the project. While prices paid by the Agency for other properties may be of interest to you, they are generally not admissible in court to establish the value of your property since each property is unique and each owner’s motives and desires may be different. You are encouraged to contact the Agency or the Ombudsman if you have any questions concerning your entitlement to information and records from a government condemnor. Most cities, counties, and state agencies have procedures in place to explain how to access public records. ( Sample form to use to request a copy of a government record.)
Access To Your Land For Surveys
The Agency is generally required to conduct surveys, studies, tests and examinations to determine which parcels of land are needed and which are suitable to complete the project in a manner that will accomplish the “greatest public good and the least private injury.” To do that the Agency will often need access to your property even in the early stages of projectconsideration. Before doing so, the Agency’s surveyors and consultants must give reasonable notice and can only come on the property at reasonable times. If you refuse access, the Agency may apply for and will usually be entitled to a court order permitting the access. The Agency will, however, be required to pay for any damages it causes to the property while conductings urveys, tests, and examinations, or will be required to restore the property to its former condition.
Required Appraisal and Negotiations
Before condemnation of your property can commence, negotiations must be undertaken to acquire the property by purchase or exchange. An Agency isrequired by law to make a reasonable effort to negotiate with you before filing for condemnation. The negotiation process usually begins with the Agency’s obtaining an appraisal of your property, including all compensable damage to any property not acquired. You have the right to be informed of the Agency’s designated appraiser’s inspection of the property and the right to accompany the appraiser during the property inspection. You should take advantage of this opportunity to explain to the appraiser any aspects and characteristics of the property that may have an effect on the property’s value. The appraiser may other wise not become aware of these features. Your comments may well influence the final opinion as to what the fair market value of your property is. You also have the right to obtain various types of information about the Agency’s appraisers, such as their names and addresses. If you would like to see the appraisal and know the valuation the appraisers arrived at, you may request access to that information, filing awritten GRAMA request if necessary. If the government denies access to the record, it must identify what documents it will not make available. The government’s decision can be appealed under GRAMA. You may also request help in getting access to the appraisal from the Property Rights Ombudsman. In any event, you will be entitled to see the Agency’s appraisal(s) well before any formal hearing on valuation, whether in mediation, arbitration or court. The appraisal process can be very complex, especially if all of your property is not acquired by the Agency. Any appraisal must be completed by a Utah State Certified Appraiser. There are many holding this license who are willing to do work in condemnation. The best appraisers to use in eminent domain proceedings are usually those with extensive prior experience and training in such matters. Real estate agents and others generally associated with property are not permitted by law to testify in court about property values. Their opinions may be of some assistance to you, but cannot be used in the formal process of condemnation. In arriving at just compensation, the appraiser must generally look at as many as six independent factors, depending on what type of property is being acquired, and depending on whether all or just a part of your property is being acquired. These factors include:
1) Land Value. This is the base value of the land that is to be acquired. The appraiser usually estimates this by looking for recent sales of similar property in the vicinity, although other valuation methods may be used. The best comparables are about the same size and shape and have the same use or potential use as your property. Adjustments are made to accommodate differences between your property and the comparables. Land value is generally expressed as a dollar amount pers quare foot or per acre. Once determined, that unit price is applied mathematically to the size of your property and to the size of the portion of your property that the Agency plans to acquire, if only part of the property is needed.
2) Improvements Improvements on the property such as landscaping, fences, buildings, etc. generally contribute value to the property, although that is not always the case. If they are in very bad condition they may detract from value. The value of improvements that are affixed to the property or which will be lost because of the proposed acquisition must be separately assessed and paid for by the Agency. The market value of improvements on the property is added to the land value to reach a total value of the property being appraised. The essential aspect of improvements valuation that must be understood is that the courts have said that the Agency must pay for the amount that the improvements contribute to the over all value of the property, not there placement cost. “Contributory value” means the difference between the market value of the property with the improvements on it and the market value of the property without the improvements. If the improvements can be replaced at a cost that is less than the “contributory value”, the Agency will often simply replace the improvements when the project is done, or offer the replacement cost to the property owner so that he or she can do the work. If the Agency chooses to pay for the lost market value that occurs because the project destroys an improvement, that may be legally sufficient, even though the property owner may attach a much greater value to the landscaping, building, natural features or other amenities that are lost. Sentimental value, forexample, is not recoverable. Sometimes an Agency will consider the overall fairness of the process, however,and make accommodations that are appropriate, though not necessarily required.
3) Severance Damages If only a portion of a parcel is being acquired, then an analysis must be made to estimate whether the acquisition will result in damage to the value of the property which is not being acquired (known as “the remainder”). Severance damages are generally expressed as the difference between the value of the remaining property in its “after” condition and the value of the remaining property in the “before”condition. The most common situation where severance damages occur is when the remaining property no longer has the same function or utility as it had prior to the condemnation. If the remaining parcel has no utility or has lost all market value, the Agency may be required by law to acquire all of your property, particularly in state highway projects and when a redevelopment agency is involved. Severance damages do not apply when the entire property is acquired under eminent domain. These damages are only due if the property owner keeps a portion of the property, and the project involved substantially lowers the value of that remainder even more than the amounts due for the land taken and the improvements lost. This lowered value may be due to proximity, such as when a widened highway comes very close to a home; from loss of utility, such as when a new curb and gutter eliminate parking spaces; or other adverse effects such as loss of view, loss of access, or exposure to nuisancesand hazards. Severance damages may be due when a property is rendered “nonconforming” and the remaining use is therefore “grandfathered” under the local land use regulations. Nonconforming uses can be severely restricted by local ordinance. Perhaps they cannot be rebuilt if damaged by fire or casualty. Sometimes they cannot be remodeled or expanded. Be sure that these factors are considered in the analysis of severance damages. The key is whether the changes created by the project would lower the value of the remainder in the marketplace, not just whether the remaining property is less useful or valuable to the current owner.
4) Offsetting Benefits. In some instances the construction of the public improvement for which a portion of your land was taken enhances the market value of the rest of your property. These “special benefits” must also be valued. Examples might include the addition of curb and gutter, access to utilities, or other benefits. If there are such enhancements, and they add to the value of your remaining property, then these added values must be deducted from any severance damages in the calculation of just compensation. Even if the project’s positive impact on property value is significant, however, the benefit may only be used to offset severance damages as explained in item 3. Offsetting benefits may not be used to reduce any compensation due for land, improvements or other damages discussed above. Remember that each case has to be considered on its own merits in order to make this determination and that it is the marketplace which determines this value, not the preferences of the current owner. Please feel free to call the Ombudsman with questions about your specific situation.
5) Project Damage. Damages to the property arising during the construction may also be compensable, unless the damages are cured and the property repaired by the Agency or its contractors. If, for example, construction damages the foundation or walls of an adjacent structure, those damages must be compensated for. Sometimes the contractor is expected to cover these damages and the Agency will direct any such claims to it. These damages may not be part of the eminent domain process and payment for these claims may not be part of “just compensation”. Be sure to respect the formalities that must be followed if you have claims that result from negligence, neglect, trespass, construction problems, failed promises and incidental issues that are not essential to the project’s design and construction. Any claim for such injury to property must be filed within a year of the damage and strict notice rules must be followed. If you miss the twelve month deadline, your claim cannot be recovered from a government agency, though you may still be able to pursue a private contractor. The Ombudsman does not assist with all construction damage claims, but hecan explain the claims process and help you get in touch with the right people to contact.
6) Temporary Use or Occupancy. Often during construction part of the property not actually acquired is “used” by the Agency for construction purposes. This temporary “use” must be compensated for and is assessed much like a fair short term rental would be negotiated. No permanent interest in the property is acquired and the right to use and the obligation to pay for use terminates when construction is completed. At that time, the “used” property returns to the exclusive ownership and use of the landowner. Usually temporary occupancy compensation is calculated by determining the market value of the land involved and multiplying that value by an annual percentage rate such as 10% for each year that the land must be used. This payment is in addition to item 5, which includes reimbursement for damages done to the property while it is used by the Agency.
Items which are not genearally compensable: All property is unique in its owner's eyes. We all purchase or hold property because it appealed to us more than other properties, based on our particular wants, tastes,and desires. Property values, however, are determined objectively, by market forces, and not subjectively by the unique value it holds to the current owner. Loss of sentimental value, of historic interest, and emotional trauma associated with having to sell property through condemnation are not compensable under the law and may not be considered. It is also not a factor in valuation that the condemnor may have special or unique need or use of the property. The measure ofcompensation is not the profit the Agency may make, but the lost value the property owner suffers. Just compensation is determined by analyzing objectively what a reasonable and well-informed buyer, who is not compelled to buy, would pay to buy the property from a reasonable and well-informed seller, who is not compelled to sell. The price is to be that which would be negotiated under normal market conditions for a cash sale. The proposed use by theAgency cannot influence that price – it cannot increase it, or decrease it, and the valuation is arrived at as if the proposed project for which the property is needed does not yet exist. Noise, dust, inconvenience and other unavoidable aspects of construction that affect all properties in the area are not considered in determining just compensation. Unless the interference is very unreasonable and of long duration, no compensation is due for construction inconveniences. All six of the above issues must be addressed in the appraisal process, when applicable, and you are entitled to know how any offer of compensation addresses each of these items. Any aspect of the project that affects just compensation should be disclosed to the appraiser and he or she must take them into account in arriving at a conclusion as to value.
Negotiation
Once the appraisal is completed and accepted by theAgency, the Agency must offer to you the full accepted appraised value and damages as defined above. You are entitled to receive a written statement showing how that value is established. In most cases, particularly when the property owner is the occupant of a residence involved in the acquisition, the Agency will give you theentire appraisal report. Since appraisals can be very technical, a summary should be provided that explains the data, analysis, and final conclusions of the appraiser. You are entitled to have time to consider any proposals for compensation, to have those proposals in writing, and to be protected from any coercive or heavy-handed negotiation technique. The Agency cannot commence condemnation proceedings until it has negotiated with you in good faith in an effort to acquire the property without legal action. Proposed construction schedules and demands for occupancy of your property must not interfere with negotiations. Negotiations require the involvement of both parties. You should reply in a timely manner to any offers made to you. If you do not respond, your silence may be viewed as a rejection of an offer. The Agency is not bound to negotiate when negotiation is futile or continue to accommodate unreasonable demands by property owners Feel free to ask questions in the process of negotiation and to consult with experts, lawyers, appraisers and other people knowledgeable about the process. Find out all you need to know to make an informed decision about whether to accept the proposed just compensation or not. Obviously, it is easier and more convenient to settle without extended negotiations or dispute resolution. Condemnation proceedings can be expensive and time consuming. A reasonable resolution of any disagreements through negotiation or mediation is usually in everyone’s best interest. Remember that negotiations can continue even after the formal arbitration or court process has begun. Many cases are settled just before or even during trial. You have the right to reject any offer for any reason, or to request more information if you are unable to make a decision due to insufficient facts. The Agency also has the right, after it has determined that good faith negotiations have reached an impasse, to proceed with condemnation and seek resolution in court. At that time you are served with a Summons, and the date of valuation of your property is fixed. There will be no compensation paid for any improvements you make to your property after the date that an action is filed. NOTE: Government entities are unique in American law. Although the agent of a corporation or individual can bind that individual, agents of government rarely do. If the Agency’s negotiator makes representations to you that you rely on to make decisions, make sure that those representations are in writing. All of the essential factors that are part of your decision to accept just compensation should be in any final document you sign with the Agency to convey title or agree to a final resolution. Often an Agency will agree to provide fences, landscaping, or other non-cash incentives as part of a settlement. Make sure these terms are reduced to writing and approved by the governing body of the Agency. Understandings that are not part of these written documents are not likely to be binding and cannot be enforced. There are times when property owners want enforceable assurances that condemnation will not be used against them in the future. Such covenants are illegal, and are unenforceable as a matter of law. You should not seek, nor accept, such a condition.
Gifts
Sometimes, usually for tax purposes or to improve the community, property owners may wish to make a “gift” of the property to the government, to waive payment for some compensation that they may otherwise be entitled to, or to sell property for less than market value. This is entirely appropriate and may be useful to you. In state highway projects or other projects supported by federa lfunds, the Agency must disclose to you the amount of just compensation that would be offered if the property were not given to the government. The Agency must then offer to pay for the property instead of receiving it by gift. There are some projects however, where funds are limited, that will not be accomplished without private donations of land. All involved have to decide if the project justifies the gift of land or not. While the project may not be completed if the land is not gifted, that does not justify any coercive tactics to compel you to give. Such demands for property are wholly inappropriate. A gift must be made without duress, misrepresentation, or other abusive tactics.
Hardship Acquisitions
There may also be times when the property owner needs to sell, but the government entity is not ready to buy under normal circumstances. Knowing that the specter of a pending condemnation can chill the market to sell property, some agencies have programs to acquire property from families where a normal delay may work a hardship on them. Sometimes a job transfer, health problems, financial difficulties, or other factors make selling property necessary. If this is your situation, discuss the matter with the Agency involved and find out if they have a procedure for hardship acquisition. Under these circumstances, the normal rules of eminent domain may not apply and the transaction is one of negotiation only. The acquisition is probably totally voluntary. The property owner does not have the right to protest the terms or timing of the sale unless the Agency has taken some action that would constitute a breach of a constitutional right by unreasonably delaying condemnation or taking some other inappropriate action.
If Negotiation Fails, The Government Can File Legal Action
If you and the Agency are unable to reach an agreement based on the appraised value, the Agency will likely choose to use its power of eminent domain. Prior to filing a Complaint, a local government entity must approve a condemnation resolution within a public meeting. They do not have to notify you that the condemnation resolution is on the agenda, but it must be posted publicly 24 hours in advance as any other public meeting would be. State agencies and private companies are not required to adopt a resolution of condemnation. The condemnation process is commenced with the filing of a Complaint in the local district court, and by serving you with a Summons and copy of the Complaint. The Complaint must identify the parties, (the parties include the Agency and you and all others who have an interest in your property, such as the holder of a mortgage or lien on your property) and describe specifically the property to be taken. If less than the entire property is being acquired, the Complaint will include a site drawing showing the“whole property”, the portion being acquired (the“take”) and that which is not being acquired (the“remainder”). The judicial process in eminent domain is technical and the Agency is required to follow those procedures precisely. Any deviation may result in the condemnation case being dismissed, although it can and usually is re-filed once a defect or omitted procedure is cured.
Attorneys and Attorneys Fees
If you wonder whether or not you should consult with your attorney about a pending condemnation, the answer is yes. You need all the information that is available to you about the choices you face, and your attorney will have a perspective you should consider. This does not mean that you are obligated to retain counsel to deal with condemnation negotiations. You can consult along the way and decide at any time to bring your attorney into the process, or consider the advice she has while responding to the process on your own. Legal fees incurred by the landowner in a condemnation case are generally not recoverable in Utah, even if you prove in court that the condemnation is unjustified and it is dismissed, or if you prove that you are entitled to more compensation than was offered. There are special rules for redevelopment agencies, however, where legal fees can be recovered in some instances. Generally, you are only entitled to reimbursement for attorney fees if the government abandons an eminent domain action after it is commenced or refuses to pay the just compensation ordered. When any Agency uses federal funds, there are a few more instances where legal fees must be paid by the government, but only in very limited circumstances. You may contact the Private Property Ombudsman for more specific details related to your particular circumstances. Landowners can often negotiate with attorneys to represent them on a contingency fee basis, where the lawyer receives a percentage (sometimes 1/3) of the difference between the amount ultimately obtained for the client and what was offered by the Agency before the lawyer became involved. Some attorneys will also consult with you on an hourly basis and not take a share of the ultimate award of just compensation.
Mediation or Arbitration
You do have the right to request that an attempt be made to resolve the matter through arbitration or mediation instead of through legal action in the court. If you request him to become involved, the Property Rights Ombudsman has the power to stop the court proceedings and arrange mediation or arbitration of almost any issue in the process of condemnation. You are entitled to have an attorney represent you in mediation or arbitration, just as you may have legal counsel at trial. Mediation is a negotiation that involves a neutral third party who works with you and the Agency to arrive at a settlement that both parties agree is fair. Each party remains in control of the outcome. Arbitration is more formal. An arbitrator may make a decision that resolves the dispute like a judge would make but the process is much more informal than a court proceeding. The Ombudsman may determine that the matter is not appropriate for mediation or arbitration and allow the legal proceedings to continue or he may intervene in the proceedings and stop legal action. Usually the legal process takes long enough that an arbitration can be completed within the time it takes to schedule a trial. The Agency may prefer mediation or arbitration and suggest it. But you as property owner need not participate if you do not choose to. On the other hand, if you want to mediate or arbitrate and the Ombudsman determines it to be appropriate, the Agency involved is compelled to participate. After arbitration, either you or the Agency involved in the case may appeal the resulting decision to court. The court will rehear the evidence, and may or may not give any deference to the record established at the arbitration. The Ombudsman and/or your attorney will attempt to help you make the best decision from your remaining options. It is the mediator, arbitrator, or court’s duty to ensure that you are not wrongfully deprived of the right to use and enjoy your property. The mediator, arbitrator or judge will work to assure that the Agency has complied with each and every one of its requirements in the condemnation proceeding.
Taking Immediate Possession
If the Agency determines that good faith negotiations have reached an impasse, the Agency may attempt to take immediate occupancy of your property so long as you are not displaced by their doing so. If you are to be displaced, they can usually only obtain immediate occupancy after they have given you the required 90-day displacement notice and met the other statutory requirements they must meet prior to taking occupancy. This issue cannot be forced to arbitration, but must be decided in a courtroom unless both parties agree to arbitrate. The court will consider the value of your property and the damages that may result if immediate occupancy is granted. The Agency must show why the property must be made available quickly. If the court decides in favor of the Agency and grants occupancy, the Agency must immediately deposit into court the full amount of the estimated just compensation. You may withdraw this money if you wish to. If you refuse this payment, and leave the money with the court, all of your legal rights to challenge the amount of just compensation in court or arbitration remain unaffected. If you withdraw the money, you may not challenge any part of the condemnation process except whether or not you have been paid the full amount you should have been paid. If you wish to preserve all your rights to challenge, you must not withdraw the funds that the Agency has paid into court. If you believe that the only real issue is whether you are owed more money, there is probably no reason not to take the funds. You will not receive interest on the money if you do not take it at the time of immediate occupancy. As an alternative to legal action, you and the Agency may negotiate a right of occupancy agreement that would avoid the need for filing a motion in court. This is usually a good thing to do, since it avoids the Agency’s having to file a lawsuit against you. Since both you and the Agency may be better off if no legal action is filed, they may agree to pay you their estimate of just compensation in exchange for the right of occupancy, just as they would have to do if they took the matter to court. The date of occupancy usualy fixes the date that just compensation is to be based upon. Be sure that it is understood that you are entitled to interest on any future funds received as additional just compensation. The Ombudsman has prepared a form that can be used to agree to occupancy of the property and can explain such agreements to you or to your attorney.
Determination of Just Compensation
According to Utah courts, “just compensation” means that you are to receive fair market value for your property. After formal condemnation proceedings have begun, the arbitrator, jury or judge must hear legal evidence regarding just compensation offered by you and the Agency. At mediation, arbitration or trial, you are entitled to have a state certified appraiser testify regarding your appropriate compensation. You may have to pay the witness for his or her time, however. In addition, you may testify yourself about your property if you have intimate or special knowledge of its uses and value. By hearing evidence from you and the Agency, all of the factors described in the appraisal process above may be determined by the arbitrator or court. If you are dissatisfied with an arbitrator’s determination of just compensation, you may appeal the matter to district court. If no arbitration is held, the first resolution of the issue of just compensation will be made in the district court. If you are dissatisfied with the district court’s decision, whether you arbitrated the issues before hand or not, you can usually appeal certain aspects of the court’s decision to an appellate court.
Relocation Benefits
In some circumstances, the amount of property acquired means that you may have to move. The Utah Relocation Assistance Act was created to offset some of the hardships associated with having to move from your home, business, or farm. Under the Act, if you are displaced or required to move for the project, you may be entitled to reimbursable relocation costs, which can include actual moving expenses, and certain other costs depending on the type of property being acquired. Residential. If you are the homeowner and you are displaced from your home, the relocation costs due may include the cost of replacement property if you must pay more for equivalent property than you received in just compensation. Payments to you may also include interest rate penalties and other incidental costs of the move. In addition, the Agency will usually pay any transfer taxes and recording fees. Whether you own or rent a home, if you are displaced the Agency is also required to offer you a comparable replacement dwelling that is safe and clean and reasonably close to your employment and public services. If one cannot be found for the compensation you received for your former residence, additional sums may be paid to you so that you can find an appropriate home. If you are a renter and cannot find an appropriate rental unit at the same or lesser rent, the Agency may be obligated to pay some of your rent. Small Business or Family Farms. If you must move your small business or family farm, the Agency will assist you by identifying replacement properties available on the private market located within the jurisdiction of the Agency. Again, you are usually not required to move from your property until 90 days after receiving written notice that the move is required. If you are not satisfied with the relocation assistance offer, you may ask the Ombudsman to appoint a mediator or an arbitrator to consider the issue, which he will do after you have attempted to resolve any disagreement using the Agency’s appeals procedures. If you are involved in a court action over the condemnation, the court could also consider relocation issues, but this is rare. Condemnation cases are usually limited to just compensation. Relocation issues are handled separately Any Agency that displaces the occupants of property under condemnation or the threat of condemnation may adopt rules and regulations explaining the procedures for compensating those who must relocate. If it does not, then it must follow the rules that have been adopted by the Utah Department of Transportation. Ask to see those regulations and call the Agency and/or the Ombudsman with any questions that you may have.
Tax Information
Your just compensation will sometimes not be considered as income for tax or welfare purposes, but there may be income tax questions if your property has increased in value substantially since you acquired it. The IRS classifies this type of property purchase as an involuntary conversion. You should contact the IRS and the Utah State Tax Commission to obtain additional tax information if you have questions. You are responsible for paying your property taxes. If all of your property is taken, the taxes are usually prorated based on the date of occupancy or the date you closed the transaction and transferred title. If part of your property is taken, this will sometimes trigger an adjustment to your taxes by the County Assessor. If this does not occur, consider appealing your property valuation next time you are notified of an annual assessment. If your property is being taxed under the Farmland Assessment Act as “Greenbelt Property,” the law requires the Agency to pay any rollback taxes that are due as a result of an acquisition. Remember that you must provide marketable title to the property being acquired. Sometimes your mortgage document, the deed of trust or other liens and encumbrances recorded on your property provide that creditors are paid the proceeds of condemnation actions instead of the property owners. Check with a title company, your lender, or an attorney about specifics if you have questions
Property Rights Ombudsman
The Property Rights Ombudsman can advise you about your rights and responsibilities in the event of a condemnation proceeding. He is an attorney employed by the State and an expert in the law of eminent domain. There is no charge for his services. His goal is to help you avoid the cost, delays and hassle of legal action. Agencies can also benefit from using mediation and arbitration, thus avoiding costly court action. While the Ombudsman will answer questions when asked by agencies and by property owners, he will not actively work to resolve your condemnation matter unless you request that he do so.
Inverse Condemnation
So far, we have talked about what to do when the government wants to buy your property. If you believe that some government action has substantially affected the use or value of your property and the Agency involved does not wish to pay you for the taking or damaging of your land, you may have a cause of action in “inverse condemnation." These claims are known as “takings” cases, and more information about takings are found on the Ombudsman’s web site and in another booklet like this one that is also produced by his office. Violation of constitutional property rights by inappropriate entry onto private property, regulations that go too far in limiting uses, nuisances conducted adjacent to private property by public entities, and other taking issues are beyond the scope of this summary.
Conclusion
This booklet is not intended to describe every issue involved in the acquisition of property for public projects or every right that you may have. If you have further questions concerning the process or your rights, you are urged to contact the condemning Agency, a qualified attorney knowledgeable about condemnation proceedings, or the Property Rights Ombudsman.
Definitions
Appraisal
The process of estimating fair market value in a property or property interest. This valuation is done by a qualified state-certified appraiser.

Condemnation
The acquisition of private property for a public use, for just compensation. Condemnation is not used until all attempts to reach an agreement have failed. Condemnation actions are brought under the power of eminent domain.

Eminent Domain
The legal process by which the government or private utilities acquire property by condemnation for a public use and pay the property owner just compensation.

Fair Market Value
The sales price that a willing and informed seller and buyer would agree upon within a reasonable time. The price is usually arrived at by an analysis of the values of comparable properties in the area.

Noncompensable Damages
Those damages that are not compensated because they are not specific and peculiar to the property. Loss of use and convenience due to dust, noise, interruption of access, and other inconveniences are often not compensable because all property owners and residents in the area suffer these effects, whether property was acquired from them for the project or not.

Just Compensation
The price the Agency must pay for property as a result of the eminent domain process. Just compensation is the established fair market value as of the date that is fixed by law that the acquisition became sure. Unless otherwise negotiated, this is the date that a summons was served on all those holding an interest in the property.

Offer to Purchase
A written offer stating the Agency’s intention to buy property at a specific price.

Order if Immediate Occupancy
A judicial order giving the Agency the right to use the portion of a property that is necessary for public use.

Property Owner
The person or entity that owns or leases land subject to eminent domain proceedings.

Right of Occupancy Agreement
An agreement entered into by the owner with the Agency, giving the Agency the right to proceed to occupy the project. A right of occupancy agreement can be used as an alternative to the Agency’s going to court to obtain an Order of Immediate Occupancy.

Severance Damages
If part of the property is aquired for a project, and the remainder suffers a net loss of value because of the project (after allowing for the beneficial effect of the project on value), then severance damages are owed to the property owner. Severance damages are calculated by comparing the value of the remainder (as part of the whole property) before the project to its value, if any, must be paid as severance damages.

Taking
A legal term used to describe the Agency’s acquisition of property through the power of eminent domain, for the public use, and requiring just compensation.

Uneconomic Remnant
The portion of a property owner’s property that remains after a taking which is determined to be of little value and utility.
Sources of Law Referred to in This Summary
Utah Constitution:
Article I, Section 22.

Utah Code Annotated:

Eminent Domain:
Sections 78-34-1 thru 21


Relocation Assistance:
Sections 57-12-1 thru 14


Property Acquisition Procedures:
Section 78-34-4.5 and Section 57-12-13


Redevelopment Agencies:
Section 17A-2-1201


Dispute Resolution - Condemnation:
Section 78-34-21


Dispute Resolution - Relocation:
Section 57-12-14


Property Rights Ombudsman:
Section 63-34-13


Federal Rules related to Eminent Domain:
49 CFR 24
(49 CFR 24 applies to UDOT, all federally funded projects, and other projects where residents, farms and businesses are displaced and the agency or company that is displacing them has not adopted its own specific rules to regulate the process of relocation.) These statutes and other information are available via the internet at the Ombudsman’s home page: http://www.utahpropertyrights.com/index.htm
How To Contact The Property Rights Ombudsman
By Mail:
Craig M. CallProperty Rights OmbudsmanDepartment of Natural Resources Administration1594 West North Temple, Suite 3710Box 145610Salt Lake City, UT 84114-5610


By Phone:
1-877-882-4662-TOLL FREE(1-877-UTAH OMB)


By Fax:
(801) 538-7315


By e-mail:
ppombud@aol.com


By Internet:
http://www.utahpropertyrights.com/index.htm

Eminent Domain.. the most recent issue

In law, eminent domain is the power of the state to appropriate private property for public use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.
In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.
The term "expropriation" is often seen as synonymous with "eminent domain" and may especially be used with regard to jurisdictions that do not pay compensation for the confiscated property.
The term "condemnation" can also be used, particularly to describe the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects.
The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).
In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. Over the years the definition of "public use" has expanded to include economic development schemes which use eminent domain to displace private homes and businesses in order to transfer it to private developments that are more profitable. In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954) [1] (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=348&invol=26), permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004 [2] (http://michiganimc.org/feature/display/6334/index.php), as precedent. This expansion of the definition is before the United States Supreme Court in the fall of 2004 [3] (http://www.uncommonthought.com/mtblog/archives/092904-a_new_take_on_eminen.php), [4] (http://www.supremecourtus.gov/docket/04-108.htm), Kelo et al. vs. City of New London.
In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [5] (http://www.dsni.org/), a community group in Boston who attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.
In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions." Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.
In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation.
In England and Wales, and other jurisdictions that follow the principles of English Law, the related term compulsory purchase is more commonly used.
Etymology
The Latin term dominium eminens ("supreme lordship") was used in the 17th century by Grotius to describe the concept explained above.
Further reading
Steven Greenhut, Abuse Of Power: How The Government Misuses Eminent Domain, Seven Locks Press, June, 2004, trade paperback, 312 pages, ISBN 1931643377
External links
"Panelists discuss eminent domain" by Thomas Ott, Cleveland Plain Dealer, September 30, 2004 (http://www.cleveland.com/news/plaindealer/index.ssf?/base/cuyahoga/1096536915218230.xml)
Commentary in The Washington Times by Dana Berliner, 2004 (http://www.washtimes.com/commentary/20040904-104702-3620r.htm)
"GOVERNMENT VS. PRIVATE PROPERTY OWNERS: DCX expansion forces small repair shop to give up land" Sarah A. Webster, August 17, 2004, Detroit Free Press (http://www.freep.com/money/autonews/jeep17e_20040817.htm)