Is the Condemning Authority Required to Pay Landowner Attorney Fees?
A property owner is entitled to recover attorney and witness fees (including experts) and other costs and expenses from the condemning authority in three circumstances:
the court determines the taking is not necessary for a public use, Ohio Rev. Code §§ 163.09(G) & 163.21(B). If the court determines, “in a final, unappealable order,” that the condemning authority is not entitled to take the property because the taking is not necessary for a public use, then “the court shall award the owner reasonable attorney's fees, expenses, and costs.” Ohio Rev. Code §§ 163.09(G).
the condemning authority abandons the appropriation proceedings, Ohio Rev. Code § 163.21(A)(2). If the agency abandons the appropriation under R.C. 163.21(A), “the court shall enter a judgment against the agency for costs, including jury fees, and shall enter a judgment in favor of each affected owner, in amounts that the court considers to be just, for each of the following that the owner incurred: (a) Witness fees, including expert witness fees; (b) Attorneys’ fees; (c) Other actual expenses.” Ohio Rev. Code § 163.21(A)(2).
with one exception, the jury’s just compensation award is greater than 125% of the condemning authority’s good faith offer, Ohio Rev. Code § 163.21(C)(1). The exception is that an owner shall not be entitled to an award of fees and expenses when his property is taken for a public road or a public exigency unless the property was previously used for agricultural purposes and the jury’s award exceeds 150% of the good faith or revised offer. Ohio Rev. Code §§ 163(C)(2). If the jury’s award exceeds the statutory threshold under Ohio Rev. Code §§ 163(C)(1)-(2), “the court shall enter judgment in favor of the owner, in amounts the court considers just, for all costs and expenses, including attorney's and appraisal fees, that the owner actually incurred.” Fees and expenses awarded under division (C) of Section 163.21 are capped at 25% of the difference between the condemning authority’s “last written offer” made at least 45 days before the original trial date and the jury’s award. Ohio Rev. Code § 163.21(C)(4). Moreover, the owner is not entitled to recover fees and expenses under division (C) unless, at least 50 days prior to the original trial date, the owner provides the condemning authority with “an appraisal or summary appraisal of the property being appropriated or with the owner's sworn statement setting forth the value of the property and an explanation of how the owner arrived at that value.” Ohio Rev. Code § 163.21(C)(5)(b). There are no similar limitations on a property owner’s award of fees and expenses when the court determines the condemning authority is not entitled to take the property or when the agency abandons the appropriation proceeding.
The property owner is entitled to recover fees and costs from the time when she retains attorneys after being notified of the condemning authority’s intent to appropriate her property. But, interest does not begin accruing until after the date of a monetary judgment.