Attorney Fees and Costs

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Must the government pay for my attorney’s fees and costs, over and above what it pays me for the taking and damages?

The government may be required to pay the attorney's fees and costs you incur in connection with condemnation of your property, over and above what it pays for the taking and damages. Reimbursement of these expenses is governed by statute. 

Generally, the government will be required to pay your attorney a fee at the end of the case if you obtain a monetary or non-monetary benefit over the government's first written offer for the taking, based on a percentage of any such increase. The statutory percentages are as follows: 33% of any benefit up to $250,000; plus 25% of any portion of the benefit between $250,000 and $1 million; plus 20% of any portion of the benefit exceeding $1 million. 

Whether or not you obtain an increase over the government's first offer, the government will be required to pay your costs incurred in the eminent domain proceedings (other than your attorney's fee, such as appraisal fees and engineering invoices) to the extent that the presiding judge rules the costs were reasonable at the end of the case. 

Any arrangement the owner has with his or her attorney to pay fees or costs in excess of those awarded according to statute should be clearly set out in the employment agreement between the owner and the attorney. 

Payment of fees and costs, as explained above, may be affected by the government filing of an "offer of judgment," as explained in the next section.

What is an offer of judgment, and how does it work? 

An offer of judgment is a formal legal document which has at least two significant effects on a condemnation case. It is, first and foremost, a formal and binding offer to settle the case on the terms contained within the offer of judgment. It is an offer by the condemning authority to have judgment entered against it on the terms set forth.

The second significant effect an offer of judgment has on a condemnation case is its effect on the condemning authority's obligation to pay the owner's costs. 

When an offer of judgment is made, the owner has 30 days in which to accept the offer, reject the offer or allow it to expire. If the owner accepts the offer, then payment of the owner's costs proceeds according to the terms of the offer of judgment. If the owner rejects the offer of judgment or allows it to expire 30 days after the offer is served, and the jury returns a verdict in an amount lower than the offer of judgment, then the condemning authority is no longer responsible to pay the costs of the owner for services rendered after the date of the offer's rejection or expiration.

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