Real Estate & Property Law

Government Must Pay 100% Of Owner's Defense Fees In Illegal Condemnation

By Robert Thomas (inversecondemnation.com)

Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses

The County of Hawaii filed a condemnation lawsuit, and when it looked like that action was in legal jeopardy, filed a second lawsuit seeking to take virtually the same property. The trial court eventually held the first condemnation was an unconstitutional private taking, but upheld the second.  The County denied it was liable for 101-27 damages even though the property was not taken in the first condemnation, because it was successful in the second. 

In County of Hawaii v. C&J Coupe Family Ltd. P?ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not "finally taken" in a condemnation action when a single condemnation fails or is dismissed, even if the condemnor succeeds in a subsequent -- or concurrent -- attempt to take the property. The Supreme Court ordered the trial court the issue of the amount of damages incurred in the trial court, and in a May 14, 2009 order (posted here), the trial court awarded the property owners all of the attorneys fees incurred at trial, including over $1.5 million in attorneys fees and $111,000 in costs.  The court held the rates charged for professional services were reasonable "given the complexity, breadth, and amount of issues presented in this case and the extensive experience of counsel in this area of law." Disclosure: we represent the property owner in these cases.

Full post as published by inversecondemnation on May 18, 2009 (boomark / email).