Unlocking Landlocked Land
Noah Klug, a Summit County, Colorado lawyer, wrote a recent note for the Summit Daily, Colorado newspaper. He commented on how the procedure allowing private individuals providing that private individuals may have a right to obtain practical access to their property through private condemnations.
Each state has its own legislative and constitutional framework, allowing or barring private condemnations for access to landlocked parcels. The prescription provided by Mr. Klug in Colorado may or may not apply in other jurisdictions.
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.
