Municipal Takings

Local public condemnors, i.e., municipalities, counties and other local agencies obtain private property for a public purpose by filing a condemnation action under Article 3, Chapter 40A of the North Carolina General Statutes.  It is important to understand that the procedure is similar to NCDOT filings under Chapter 136 but there are a few important differences between the two procedures. 

Notice of action

• Not less than 30 days prior to the filing of a complaint under Chapter 40A, a public condemnor must provide the landowner of its intent to institute an action to condemn property.  NCGS § 40A-40(a).
• The notice must contain: (1) the words “Notice of condemnation”; (2) a general description of the property to be taken; (3) the amount estimated by the condemnor to be just compensation for the property to be condemned; (4) the purpose for which the property is being condemned; and (5) the date the condemnor intends to take possession.
• The landowner is entitled to no relief because of any defect or inaccuracy in the notice unless the owner was actually prejudiced by the defect or inaccuracy.  NCGS § 40A-40(b).

Initiation of action and deposit

• A public condemnor shall institute a civil action to condemn property by filing in the superior court of any county in which the land is located a complaint containing a declaration of taking declaring that property therein is thereby taken for the use of the condemnor.  NCGS § 40A-41.
• The filing of the complaint shall be accompanied by the deposit to the use of the owner of the sum of money estimated by the condemnor to be just compensation for the taking.  NCGS § 40A-41.

Answer, reply and plat

• The landowner shall have 120 days to file an answer for the purpose of seeking a determination of just compensation.  NCGS § 40A-46.
• The condemnor, within 90 days from the receipt of the answer shall file a plat of the property taken and such additional area as may be necessary to properly determine compensation.  NCGS § 40A-45(b).
• Failure to file an answer within the time allowed constitutes an admission that the amount deposited with the court is just compensation.  NCGS § 40A-46.

Measure of compensation   

• The commissioners, jury or judge shall determine the issue compensation.  NCGS § 40A-52.
• The landowner has the right to engage in discovery in the form of depositions and document requests.
• The landowner has the right to call witnesses at the trial, including expert witnesses on the issue of damages.

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