The things you don't find on a site inspection can come back to haunt you at trial. Here's how to handle them.
Before You Enter the Haunted House: Preparation Is Your Protection Spell
Every horror movie has a character who walks into the dark basement with no flashlight, no plan and no idea what's down there. Don't be that character.
In eminent domain, a site inspection isn't a casual walk around the property. It may be the only time your appraiser, engineer or other expert sees the property before it's valued, taken or changed for good. Before anyone crosses the threshold, go through the title reports, the prior appraisals, the assessor's records, the permits, the environmental reports and the aerial imagery over time and be sure to coordinate with your experts for appropriate issue spotting. Having handled these cases for both condemning agencies and property owners, I've learned that a well-scoped inspection plan saves you from surprises later and that the side that prepared may have the stronger narrative about the property's highest and best use.
The First Séance: Initial Offer Inspections
The first séance is the agency’s pre-condemnation appraisal inspection, the summoning of the facts behind the initial offer of just compensation. Many jurisdictions require the agency to appraise the property and give the owner (or the owner’s representative) an opportunity to accompany the appraiser and the offer usually must be based on that appraisal. This first look often sets the tone for the whole case and can present a rare opportunity to mitigate unforeseen impacts when the project was originally designed and acquisitions initially identified. What is missed at the first séance can haunt the offer, the negotiations and, ultimately, frame how the matter is litigated.
Don't Split Up the Group: Access, Coordination and Keeping the Peace
In scary movies, the trouble starts when someone wanders off alone. Site inspections go wrong the same way when coordination breaks down.
Access should be arranged in writing, whether by agreement or under whatever statutory or court-ordered entry procedure applies in your jurisdiction. That writing should cover the date, the time, who will attend, what testing or measuring is allowed and any limits on photos or video. Work to resolve any issues well in advance of the site inspection to avoid conflict and delay at the time of the inspection.
Preserving your ability to document what you see can help avoid the issue of one party controlling how the property is framed should the matter proceed to trial. It is not unusual to see the photos of each side presented as exhibits framed in the light most advantageous to their respective position. For example, an owner tends to represent a pristine property marred only by a looming project, while the condemnor tends to highlight the property’s warts.
Take note of any questions and responses provided over the course of the inspection, as it may frame the basis of certain appraisal assumptions and could highlight unforeseen damages issues.
Treat the owner and occupants with respect. A condemnee who feels ambushed can turn into the angry villagers with torches and a jury can pick up on that resentment. Owners' counsel should be just as careful. Attend the inspection, keep an eye on the scope and make sure the agency's experts see the improvements and features that support your client's valuation and not only the flaws.
To the extent possible, never go in alone. Attend with at least one other person, tell someone the schedule and bring flashlights, sturdy shoes, gloves and other protective gear as appropriate for the site at issue. While not all issues can be anticipated, nearly every appraiser has a horror story of things encountered during an inspection, including unknown (and potentially hostile) tenants or occupants emerging from the grounds or a whole host of other unexpected circumstances.
Skeletons in the Closet: Document Everything, Especially the Unexpected
Every property has secrets and even a solid plan won't reveal all of them. The skeleton might be an unpermitted addition, a leaking underground tank, a failing foundation or a tenant whose lease nobody mentioned. It might also be a surprise that raises value, like recent renovations, specialized fixtures or access features that aren't in the records. Whatever you find, write it down, photograph it with timestamps, measure it and connect it to a site map. Conditions should be recorded as of the inspection date and ideally tied to the date of value, so no one can later claim a crack "appeared" or a feature "vanished." Ghost stories get bigger each time they're told and so do disputes over property conditions. Contemporaneous records are the best way to keep those stories honest.
The Sequel Nobody Asked For: Pre-Trial Appraisal Inspections
Pre-trial inspections are the sequel nobody asked for: litigation-stage visits by party-retained appraisers and other experts, often months or years after the first inspection and sometimes after the project has changed the property. Like any horror sequel, familiar monsters return with new twists. Conditions may have changed since the date of value, so compare the site with prior known circumstances and document the differences.
When the Findings Rise From the Grave: Impacts on Valuation and Strategy
Anticipate that inspection notes, photos and statements will become discoverable and fodder for cross-examination upon the expert disclosure. Accordingly, what your team sees on site doesn't stay in the field notes. It shows up again in appraisal reports, expert depositions and motions in limine. The inspection can also shape settlement. Agencies can use solid findings to set realistic offers early and owners can use them to show value the agency's first appraisal missed. If your side didn't document a condition, expect the other side to use that gap against you at trial.
The Takeaway: No Tricks, Just Treats
The inspection isn't the frightening part of an eminent domain case. The frightening part is showing up at trial and learning that the other side saw something you didn't. This Halloween, look at your site inspection checklist again, confirm your access protocols and make sure your experts know what to hunt for. Prepare carefully, coordinate well and document everything. That way the only surprises this season will be the ones handed out at your front door.
Happy Halloween!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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