BEWARE OF THE RIGHT OF WAY AGENT

Let’s face it. Sometimes right of way agents can use questionable techniques. Here are some tactics to avoid.

I open this post with a disclaimer. All types of people can be confronted with a condemnation project. Their experience with legal processes, sophistication relating to real estate transactions or contracts, their ability to separate the emotional impact of the (very real) intrusion created by a condemnation from the applicable legal standards, and even their candor can vary widely. Perhaps some of the stories that I hear about the conduct of right of way agents are the product of misunderstanding or exaggeration. But the stories are frequent, shocking, and offensive. And many of the stories are supported by documents or my own observations.

Here are some of the worst.

The right of way agent who parked his car to block the property owner in so that he could not go to work.

The right of way agent who showed up at my office unannounced because he was “in the neighborhood” (my office was three counties away from the project) and when I did not have to have time for a lengthy meeting told my clients that I did not have time to work on their cases.

The right of way agent who insisted upon contacting my clients directly even after I indicated that all communications should come through me.

The right of way agent who showed up at owners’ houses unannounced, repeatedly, often in the middle of dinner.

The right of way agent who told owners that consulting with an attorney was expensive, without telling the owners that condemnation attorneys work on a contingency fee based on increasing the just compensation.

The right of way agent who told owners that consulting with an attorney was expensive, without telling the owners that the agency is responsible for reimbursing the contingent fee.

The right of way agent who told owners that obtaining their own independent appraisal was expensive, without telling the owners that the agency is responsible for paying the owners’ reasonable appraisal costs.

The right of way agent who told owners that they faced deadlines sixty days after receiving an offer, where the actual deadline is sixty days after receiving the offer or ninety days after being served with the lawsuit which makes the sixty-day deadline virtually irrelevant.

The right of way agent who told owners that they could make the easement less burdensome only if it was signed immediately, where the language to be added is actually standard in that agency’s easements.

The right of way agent who told owners that the court would give the agency whatever easement it wanted without revealing that the ability to challenge the extent of the easement exists.

The right of way agent who told owners that they would lose a settlement bonus being offered, where the total offer approximated the standard appraisal damages paid by the agency for takings of that kind.

The right of way agent who told owners that the agency would have possession of their property less than 30 days after filing the lawsuit, which is virtually impossible under the statute.

The right of way agent who told owners that the agency would not actually use all of the contractual rights granted by the easement, calling it “boilerplate.”

The right of way agent who told owners that the agency would do things for them that were not reflected in the contract documents or easement.

And the two worst. The right of way agent who told owners that they were prohibited from talking to their neighbors and comparing offers. The right of way agent who told owners that they should not hire an attorney. I’ll put this bluntly. If somebody attempts to isolate you and prevent you from getting competent advice, then you need competent advice to deal with that person. 

There are honest, ethical right of way agents out there. I have very intentionally not identified the agencies whose agents engaged in the conduct described above (frankly, I think that some of the agencies would be surprised if they truly knew what was happening), but I will call out DTE. I dealt with a gentleman from DTE who was honestly interested in making fair deals, who was willing to truly listen to how the easement would impact the owners’ properties and how those impacts could be remediated without impacting DTE’s construction and maintenance requirements. We made deals that benefitted everyone. He was the exception. 

Often, right of way agents present what I call “sucker offers.” They can be sucker offers for two reasons. First, the law requires just compensation to be determined assuming that the agency will use the rights acquired to the fullest extent allowed by law. Agencies often want easements that contain language beneficial to them if people will give them voluntarily but do not want to pay just compensation for those rights based on the applicable legal standard. This means that right of way agents often try and get owners to sign easements that are worse for them than what would be taken through condemnation. Second, the amounts offered are often far less than what an appraiser would determine to be just compensation. As I write this, I am looking at an example where the right of way agent first offered $500 and then $8,000 based on some calculations. The appraisal by the agency was $23,000. And that is the starting point for the condemnation. From $500 to $23,000 just by saying “go away.”

Right of way agents act like getting agency attorneys involved is a threat. It is not. Attorneys must abide by codes of ethics. Attorneys know that the potential exists for judges to hear about their conduct and know that their reputations are valuable. And while I often vigorously disagree with the legal positions taken by agency attorneys, I respect them as ethical practitioners and human beings. For the most part, you are better off dealing with attorneys than right of way agents and you are best off having your attorney dealing with another attorney.

Whether it is me or somebody else, if a right of way agent comes to your door, you need to talk to an attorney who specializes in representing property owners in eminent domain cases. There are not many of us and I hope that the person you choose is me, but for goodness sakes, talk to one of us. Don’t be bullied and victimized. You have rights. Exercise them to protect yourself.