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Eminent Domain: Establishing the Highest and Best Use

By Janice G. Inman

Owners of commercial properties sometimes find that their holdings have caught the government's eye as potential locations for a train line, a municipal building or a public park. When a building or lot is taken through eminent domain, the value of the property often becomes a matter of dispute between the government and the owner. Was the property, in its soon-to-be former life, a rental apartment building, a building full of leased office spaces or a warehouse? What if it had the potential to become these things but was not yet developed? Could it have been more?

A recent appeals court confirmation of the outcome of a case tried in New York offers a fine illustration of how a property owner — one that had leased its vacant lot to a commercial tenant that planned to build low-value facilities, although that tenant had not yet broken ground — may obtain a much higher price than that reflected in the value of the property at the time of seizure. All it takes is the right set of circumstances and a whole lot of good detective work.

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