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Commercial Leasing Law & StrategyCommercial LawFeaturesGovernmentLand Use and PlanningLJN Newsletters

Eminent Domain: Establishing the Highest and Best Use

By Janice G. Inman
February 01, 2017

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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