Title: 32 Harris Shelton Attorneys Receive Best Lawyers Designation
Harris Shelton Hanover Walsh, PLLC is proud to announce that 32 of its attorneys have received the Best Lawyers designation in the 2024 edition of the annual publication. Eight attorneys also received recognition in Best Lawyers: Ones to Watch in America. Jerry O. Potter and Barbara B. Lapides have been named Lawyer of the Year in their respective practice areas, personal injury litigation – defendants and municipal law.
First published in 1983, Best Lawyers is the oldest and most respected ranking guide in the legal profession. It recognizes top legal talent in more than 70 countries using peer review methodologies.
“Each year, it’s an honor to see a growing number of our members and associates named to this prestigious list of peer-voted awards,” said Harris Shelton Managing Member Brett Hughes. “Our team of more than 50 highly skilled attorneys excels in a broad range of practice areas.”
With each new publication, attorneys must maintain their votes in subsequent polls to remain listed. Harris Shelton attorneys who have received the Best Lawyers designation in 2023 include: Patricia E. Adrian, Robert K. Alvarez, G. Rice Byars, Jr., Susan Callison, Christopher S. Campbell, M. Anderson Cobb, Jr., Kannon C. Conway, Steven Douglass, Charles C. Drennon III, Allison T. Gilbert, W. Bradley Gilmer, A. Neal Graham, Jeffrey L. Griffin, W. Timothy Hayes, Jr., Brett Hughes, James B. Jalenak, J. Matthew Kirby, James L. Kirby, Karen S. Koplon, Barbara B. Lapides, Jonathan T. Martin, Paul A. Matthews, Edward J. McKenney, Jr., Jerry O. Potter, William Chad Roberts, J. Max Shelton, Tricia M. Y. Tweel, J. Kevin Walsh, Abigail J. Webb, George T. Wheeler, Jr., James D. Wilson, and William J. Wyatt.
Best Lawyers: Ones to Watch awards are extended to attorneys in the earlier stages of their legal careers for outstanding professional performance. Those who are recognized are selected following the same peer review process as that of Best Lawyers. Attorneys that received this year’s honor include Taylor B. Davidson, Kelsey Duckett, Sara Garner, Emily Hamm Huseth, Megan Lane, Amber Griffin Shaw, Warren A. Stafford, and Henry B. Talbot.
Lapides has been practicing law in the Memphis area for nearly 40 years. A former attorney for Hanover, Walsh, Jalenak & Blair PLLC, she joined Harris Shelton when the two firms combined in 2008. She has experience representing several municipalities in the greater Memphis area. First recognized by Best Lawyers in 2003, Potter has been included in the awards for 20 years now. With more than 40 years of experience as a trial lawyer and as an integral piece of Harris Shelton’s healthcare practice area, he has represented some of the largest health care organizations and entities in the Mid-South and beyond, delivering excellence in a wide array of complex legal matters.
Title: What’s in an acronym? With LIBOR and SOFR, a lot.
The terms LIBOR and SOFR may not be very familiar to you. But in a few months, both will be highly consequential.
LIBOR, or the London Interbank Offered Rate, and SOFR, the Secured Overnight Financing Rate, are pricing mechanisms of global financial products and are used as the benchmark by all banks and lenders with commercial loans. In 2022, the U.S. Federal Reserve formally adopted a rule implementing the Adjustable Interest Rate (LIBOR) Act, identifying benchmark rates based on SOFR instead of LIBOR. As such, by June 2023, SOFR will replace LIBOR for good.
The United Kingdom’s Financial Conduct Authority regulates LIBOR and has been the dominant benchmark rate in financial contracts for a long time. But it was widely considered too vulnerable.
A global scandal emerged in 2012 when several large financial institutions colluded to manipulate LIBOR rates by making trades appear more profitable than they were, or adjusting their values to turn a profit dishonestly. Exposures like this meant LIBOR was also subject to credit risks that SOFR is not, because SOFR is calculated by compiling a spread of transactions rather than bank submissions.
U.S. dollar LIBOR panels will wind down in 2023. In December 2022, one-week and two-month LIBOR tenors ceased and LIBOR stopped appearing in new contracts. Meanwhile, SOFR has traded roughly $1 trillion in daily volumes, representing a transparent rate derived from the United States Treasury’s repo market. Put another way, SOFR indicates the cost of borrowing cash that has been collateralized by Treasury securities.
A plan to carefully transition will smooth the switch between LIBOR and SOFR this year. Thus, your business needs to prepare accordingly for the financial impact of this change.
SOFR transactions are calculated through repo agreements, which involve one party to the deal putting up cash and the other putting up collateral. Make it part of your business’ routine, or the routine of your financial department, to check the New York Federal Reserve’s SOFR publication every morning.
SOFR transactions are secured, unlike LIBOR. However, they only involve U.S. dollars, whereas LIBOR included other currencies like the Euro, the Japanese yen, Swiss francs, and the British pound sterling. The term structure is also backward looking. Depending on your company’s trades and other financial arrangements, these details may or may not be concerning.
Some of your loan documents may still have LIBOR provisions or language within them, and while redacting and/or changing is typically a straightforward process, overlooking this step could cause you legal headaches regarding contract enforcement.
Be sure to set aside time to comb through all loan agreements and arrangements to look for fallback language, derivatives, interest payment provisions, and more. If the files are digitized, this is usually as simple as using the “find in document” feature.
Often, your promissory note or loan agreement provides for the substitution by the lender of the benchmark used to determine the interest rate. Your applicable interest rate may be based on LIBOR plus a margin, and when substituting the benchmark (LIBOR to SOFR), then the lender can adjust the margin to realize a substantively equivalent rate.
It is important to assess whether your internal financial systems are prepared for the LIBOR to SOFR switch and whether they can easily adjust to these new, alternative interest rate benchmarks. To ensure compliance and to save time, it also helps to know whether your business is prepared with spread adjustments for your contracts.
It’s typical for companies to outsource processes like accounting, taxes, human resources, information technology, and other operations. But this also means that these third-party partners will be affected by the switch to SOFR, and you need to know how well they understand and are responding to the change before June. Arrange a dedicated conversation at the earliest opportunity and have a plan in place if it appears that their preparedness levels are not as high as your own. With the right steps, everyone involved can harness the opportunities posed by this new mechanism.
This article was written by Allison Gilbert and originally appeared in the Memphis Business Journal.
Title: Harris Shelton Expands Statewide C-PACE Practice
C-PACE provides owners and developers with low-cost, long term, fixed-rate financing to improve energy efficiency, water conservation, and renewable energy projects
Harris Shelton Hanover Walsh, PLLC, one of Memphis’ largest law firms, recently announced the expansion of its C-PACE practice area, led by attorneys Tricia Adrian, Allison Gilbert, Billy Moss, and Will Brantley. Collectively, the group has more than four decades of experience in various aspects of commercial real estate.
C-PACE, or C-PACER in Tennessee, is shorthand for “Commercial Property Assessed Clean Energy and Resilience.” In T.C.A. § 68-205-101, the state’s addition of “R” to the acronym emphasizes allowing resiliency improvements.
“Offices, mixed-use developments, hotels, and apartment buildings are just a few of the kinds of properties that qualify for C-PACE financing,” said Adrian. “There is a wealth of opportunity for improvement projects including, but not limited to, more efficient building fenestration, HVAC upgrades, and even the implementation of solar power.”
Harris Shelton will assist counties and municipalities across the state with understanding, creating, and administering their own C-PACE programs. The practice group will continue to work with lenders and developers in C-PACE financing transactions, too.
The program provides an alternative path for property owners and developers to improve the energy efficiency of their buildings with low-cost financing provided by private lenders. Loan funds are paid back over time with a voluntary assessment on the property.
“As C-PACER becomes a more known financing model for property owners and developers, the economic benefit will continue to expand,” said Gilbert. “Statewide, there are ample opportunities for counties and municipalities to take advantage.”
Title: Kelsey Duckett Named to Association for Women Attorneys Board of Directors
Harris Shelton Hanover Walsh, PLLC, one of Memphis’ largest law firms, today announced that Kelsey Duckett has been appointed to the Association for Women Attorneys Board of Directors. Duckett will serve as the organization’s membership chair.
Founded in 1979, the Association for Women Attorneys is a bar association of Memphis and Shelby County. Members are dedicated to supporting each other as attorneys, educating themselves and others in the law, and being of service to the community with particular reference to the legal needs of women.
“I’m looking forward to serving alongside this group of established female legal professionals,” said Duckett. “It’s a pleasure to be a part of an organization like this one that places a great deal of importance on mentoring and supporting young professionals.”
As the membership chair, Duckett’s primary responsibilities are recruiting new members, collecting annual membership dues, and hosting welcome receptions.
Licensed in Tennessee, Texas, and the District of Columbia, Duckett is dedicated to helping clients in business and corporate law. Outside of her practice at Harris Shelton, she is involved in several professional organizations, including Memphis Urban League Young Professionals, National Bar Association – Ben F. Jones Chapter, and the Memphis Bar Association.
About Association for Women Attorneys
The Association for Women Attorneys is a bar association of Memphis and Shelby County founded in 1979. Its members are dedicated to supporting each other as attorneys, educating themselves and others in the law, and being of service to the community with particular reference to the legal needs of women.
Title: Your business is probably overpaying in taxes. Four strategies to correct it
Individuals and businesses alike are already starting to consider their tax preparations for next year. Small and medium sized business owners searching for advice about “paying too much in taxes,” will see thousands of results populate.
However, business size tends not to make as much of a difference as people think. Both big and small enterprises can, and likely will pay too much taxes because of improper optimization.
Before getting started on a major adjustment to your tax strategy, it is important to understand exactly how the legal structure of your company will shape the way taxes are assessed and even paid. Private businesses in the U.S. are typically one of the following: sole proprietorships, partnerships, C- and S-corporations, or limited liability companies – all of which have slightly different procedures.
Under a sole proprietorship, for example, an individual reports income and loss on their regular income tax return to the IRS, otherwise known as pass-through taxation. While they can deduct business expenses as they would on another tax return, they will also be liable for Medicare and Social Security taxes. These individuals may find that choosing to become a C-corporation instead might lower their tax obligations in dollars and cents – albeit with a tradeoff of a lack of simplicity that may be essential for certain types of ventures.
Additionally, improving your tax reporting is not the same thing as improving the business’s tax strategy through optimization. Instead, consider assessing the deductibility of your expenses, payroll and income tax obligations as well as any applicable deductions; working to reduce your taxes by maximizing credits, shifting income from high rates to low ones; and integrating your tax approach as part of a broader strategy to generate and sustain new sales, investments or wealth. Four strategies for doing so are recommended.
First, work with a skilled tax attorney to map out the company’s existing ownership and entity structures. This process will help the legal team identify exactly which changes can be made based on specific rules. Examples of this include registering a business in a different state for tax purposes, a procedure that will vary between the different tax structures, or reviewing S-corporation payroll taxes.
Second, carefully consider leakage points in your business strategy, such as poor cash flow that could be holding the business back both in assessing tax liability and in general growth terms. Doing so will also mean maximizing your net operating loss, or NOL, carrybacks. It also means reviewing tax rates at the state and local levels to assess whether you could be overpaying. One such example is one of your vendors mistakenly levying you on exempt items when those items travel across state lines.
Third, understand what changed both pre-COVID and post-COVID. The CARES Act in 2021 provided sometimes sweeping tax savings opportunities, including suspension of normal rules around excess business losses for individual taxpayers, providing special credits like the Employee Retention Credit, and changing the deduction of business interest expenses. The majority of these changes, however, were not permanent. With many pre-COVID changes from the Tax Cuts and Jobs Act sunsetting in 2025, next tax year will be one of the last times businesses can optimize the credits and specific programs they are using.
With this in mind, the fourth strategy is to understand – both short-term and long-term – how well your business is prepared for any eventualities and their tax implications. In a time of rising costs, labor market woes and fresh variants of the COVID-19 pandemic, businesses can expect to find themselves in continued tight squeezes, most likely without the same levels of outside support they received before. This is why working closely with a tax attorney now to successfully optimize your operation is an especially important priority.
Procedural errors, those that happen when forms are accidentally filled out wrong or contain omissions, occur that lead C-corporations and others to overpay. But more commonly, other companies do not have a tax strategy that effectively balances meeting the letter of the law with taking advantage of all the options available to them. This often happens over a longer period of time. If business owners sat down and did the math, they could find anywhere from tens of thousands to millions of dollars lost. The goal, instead, is to pay what you owe, and channel any savings back into your operations and long-term planning – a must in such uncertain times.
Title: The business of being good neighbors: Core priorities for new developments
Whether or not it’s acknowledged, a big question for growth-oriented companies flows beneath nearly any new project of scale: “Who really benefits: Ourselves, or others?”
It may be tempting to think there is always a tradeoff between the two, and that it is not possible to really achieve mutually beneficial development outcomes, particularly on the macro scale. Examples of this seem to abound. Some of the reaction to ideas generated by the urban development theorist Richard Florida form a larger-scale version of this phenomenon. The people and interests who benefit most from eye-catching initiatives, say critics, tend to be the developers and the privileged, while everyone else is at risk of disruption or displacement.
On the micro scale, the scope of discussion on what constitutes ethical development has been disappointingly limited, despite the fact that virtually any initiative involving land, construction and economic activity invites many of the same basic questions. From the perspective of an attorney, there is plenty to guide a business through the legal considerations of a project; but following the letter of the law, while good in its own right, will not itself prevent a company from inadvertently generating concern, upset, or resistance among its neighbors with a new development or project.
The private sector will always play an essential, if not leading, role in the prosperity of local communities. However, this can become even larger if we commit ourselves to good neighborship. Whatever – or whoever – your neighbors are, and whichever community you are part of, several priorities should always guide you.
A few lessons from the discussions of urban development are a good starting place. One is a proactive approach to potential consequences of a project, including those that come by design. No project is completely perfect. The question, as a result, is not to try to pursue perfection, but instead examine where the weight of the consequences fall. A simplistic example is whether or not traffic disruptions will inconvenience local residents more than it will a company’s employees while something is being built.
Does another aspect of the project potentially outweigh the problems identified in your assessment? And if not naturally, what measures can be taken to make this so?
The second important point is centering data. You don’t have to be in Silicon Valley to know that numbers, when used well, can tell a company a lot about where it is and where it’s going; how it is performing on measures like diversity and inclusion; and play a large role in public perceptions of the business it does. Efficient data harnessing also allows any developments to be centered in the context of a long-term plan, and enables process modeling for that development’s impact.
A major question to consider needs to be returned to, even if only as a grounding reminder, throughout the development process: what specific problem does the development solve, or which niche does it fill? Enterprises constantly think beyond turning a profit to provide a lasting product or service. The unfolding Blue Oval City project is an example here in our backyards as West Tennesseans. At minimum, it is providing thousands of new jobs, while also emerging as a leading hub for Ford’s electric vehicle construction drive. But taking an even deeper dive, the project will also host battery recycling facilities, centers for worker training, and resources for product suppliers, thus multiplying its impact on the value chain.
One project does not need to solve every problem. But every project having a deep and multifaceted purpose at its core – really, answering a question or responding to a problem – allows a business to show others what they are really about, and is the guiding star through each twist and turn of an initiative.
Lastly, take a step back and consider the ethical frameworks that your business has in general. No project exists in a vacuum. Instead, everything from its initial generation to discussions of what is possible and what could be off limits are all grounded in a company’s culture, some effects of which are amorphous and subtle.
Does the company have a specific policy toward development, resource use and engagement with neighbors? How does this relate to other policies and cultural attitudes encouraging volunteering, contributions to charity, and so on?
On a much simpler level, in our own lives we act as good neighbors for a number of reasons. Doing so nourishes a true sense of solidarity and community and allows people to work most effectively in the service of a shared interest. Whatever service you are providing, or innovation you are creating or selling, the motivation of bettering both the spaces around us and the world far beyond it still rings true. Indeed, good neighborship is the balancing act that empowers developments to reach the most mutually beneficial outcomes possible, because of the kind of holistic decision-making it encourages.
Learn more about our Real Estate Law practice area.
Title: Bringing renewable energy and efficiency to real estate development
By Tricia Adrian and Allison Gilbert
Sustainable development is needed now more than ever. Cost concerns have held back many models for such development, but an emerging financing framework is poised to change that.
Tennessee state legislators and the Memphis City Council have already prepared a way forward for it — and there is every reason for communities in Shelby County and across the Mid-South to embrace a development financing model backed by a robust track record.
C-PACE, or C-PACER in Tennessee, is shorthand for “Commercial Property Assessed Clean Energy and Resilience.” In T.C.A. § 68-205-101, the state’s addition of “R” to the popular acronym emphasizes allowing resilience improvements.
The act provides an alternative path for commercial property owners and developers to improve the energy efficiency of their buildings with low-cost financing provided by private lenders, shielding them from rising energy prices in the medium to long term. Money lent out is then paid back with a voluntary assessment on property tax bills.
This program allows more renewable energy and resource efficiency to be unleashed in a balanced way. New construction, building retrofits and even gut rehabs of existing structures can take place with no upfront costs. Offices, mixed-use developments, hotels and apartment buildings are just a few of the kinds of properties qualifying for C-PACE financing.
The State of Tennessee and the City of Memphis — the first municipality in the state to do so — have both passed the necessary legislation to make C-PACER an accessible financing model to property owners and developers.
Other local governments that embrace this model would be securing themselves considerable efficiency for projects during financially lean periods when budgets will not go as far. There is a reliable return on investment, both in the short- and long-term, harnessing capital that businesses could otherwise use to invest in sustainable and responsible improvement projects.
Municipalities themselves only have to approve the financing model in legislation, instead of putting forward any taxpayer funds. As the US Department of Energy notes, while state and then local government approval is needed, C-PACE is not a federal program. Therefore, it does not require public money to operate. Arguably, this presents an easy and attractive sell for community members — the closest thing to a “win-win” as can be imagined for development.
Lives and businesses are tangibly improved through things like more efficient building fenestration, HVAC upgrades and even the implementation of solar power, which is typically regarded as too expensive to even consider upfront. The projects can be recovered as operating expenses, and obligations for payment are transferable upon sale of the property.
C-PACE has a strong track record of economic benefit. For commercial projects across the U.S., more than $3 billion in investments and 42,000 job years have been measured since 2009, 72% of which either went toward energy efficiency or renewables.
Projects, of course, need to include protections for low-income communities and businesses operating there. This must be paired with robust quality assurance standards for participating contractors and clear, easy-to-access information on loan conditions and repayment terms. But these are worthwhile steps, given the benefits.
To unleash the potential of this emerging, dynamic method of development, we urge every community in the Mid-South to join them.
This article originally appeared in The Daily Memphian.
Title: Best Lawyers Names Jeffrey L. Griffin Lawyer of the Year; Eight Attorneys as Ones to Watch￼
Harris Shelton Hanover Walsh, PLLC today announced Jeffrey L. Griffin has been named Lawyer of the Year in the 29th edition of The Best Lawyers in America. Several Harris Shelton attorneys also received recognition in this year’s Best Lawyers: Ones to Watch in America.
First published in 1983, Best Lawyers is the oldest and most respected ranking guide in the legal profession. It recognizes top legal talent in more than 70 countries using peer review methodologies.
Griffin was awarded Lawyer of the Year for his work in health care litigation in Memphis. Best Lawyers presents this designation to only one individual in a given geographical region and practice area each year. His experience extends over two decades of representing hospitals, physicians, advanced practice providers, and other health care professionals. Griffin also represents small and mid-sized businesses and their owners in disputes both within their business, as well as with third parties.
“Jeffrey’s passion and experience in the health care field is an invaluable asset for the firm,” said Harris Shelton Managing Member Brett Hughes. “I’m incredibly proud of Jeffrey and the rest of our team who were recognized in this year’s awards.”
Now in its third edition, Best Lawyers: Ones to Watch awards are extended to attorneys in the earlier stages of their legal careers for outstanding professional performance. Those who are recognized are selected following the same peer review process as that of Best Lawyers. Attorneys that received this year’s honor include:
Amber Griffin Shaw – Personal Injury Litigation (Plaintiffs), Memphis
Taylor B. Davidson – Commercial Litigation; Medical Malpractice Law (Defendants), Memphis
Kelsey Duckett – Health Care Law; Trusts and Estates, Memphis
Sara Garner – Health Care Law; Medical Malpractice Law (Defendants), Memphis
Emily Hamm Huseth – Appellate Practice; Health Care Law, Memphis
Megan Lane – Family Law; Health Care Law; Medical Malpractice Law (Defendants), Memphis
Warren A. Stafford – Real Estate Law; Trusts and Estates, Memphis
Henry B. Talbot – Commercial Litigation, Memphis
With each new publication, attorneys must maintain their votes in subsequent polls to remain listed. Harris Shelton attorneys who have received the Best Lawyers designation in 2022 include: Steven Douglass, Paul A. Matthews, John Ryder, James L. Kirby, M. Anderson Cobb, Jr., Charles Drennon, J. Kevin Walsh, Edward J. McKenney, Jr., Neal Graham, Max Shelton, George T. Wheeler, Jr., Abigail Webb Sala, Will Wyatt, Christopher Campbell, Brett Hughes, Karen S. Koplon, Jonathan T. Martin, W. Bradley Gilmer, W. Timothy Hayes, Jr., Jerry O. Potter, James D. Wilson, Barbara B. Lapides, Kannon C. Conway, Allison T. Gilbert, James Jalenak, G. Rice Byars, Jr., Susan Callison, Tricia M. Y. Tweel, and J. Matthew Kirby.
Title: The National Black Lawyers Names Christopher Campbell as a Top 100 Member
Harris Shelton today announced that Christopher Campbell has been selected for inclusion into The National Black Lawyers Top 100 Black Lawyers in Tennessee. Campbell’s primary practice areas include health care liability defense, construction defense, insurance defense, transportation and carrier defense, and municipality/educational defense.
This honor is given to only the top 100 African American lawyers in each state or region with reputations for providing excellent legal representation in their respective practice areas. Membership into The National Black Lawyers is by invitation only and is based on current member referrals and independent research.
“This recognition of Christopher is yet another reason we were confident in choosing him to transition into managing our relationship and ongoing projects with Baptist,” said Harris Shelton Member Max Shelton. “Christopher is an experienced trial lawyer with over 24 years of experience. His attention to detail, extensive knowledge of the law, and ability to manage relationships are all such good qualities in a leader. We are pleased that the National Black Lawyers recognizes this, too.”
The National Black Lawyers is a professional organization that celebrates legal excellence and promotes their attorneys as subject-matter experts, facilitates the exchange of timely information to enable their members to maintain their status as leaders, and represents a strong national network of top African American attorneys.
“I am glad to see the National Black Lawyers recognize Christopher for the skills he brings to his clients, including Baptist,” commented Greg Duckett, Senior Vice President and Chief Legal Officer of Baptist Memorial Healthcare Corporation. “We look forward to working with him in the future and are pleased to know he will be at the forefront of our external legal efforts and setting the standard as a Top 100 attorney.”
To learn more about The National Black Lawyers, visit www.nbltop100.org.
Title: An overview of eminent domain law in Tennessee
Perhaps you own land that has been in your family for generations. Or, taking it one step further, you operate a profitable business on the land and have no intention of ever selling it.
Now, imagine that one day, you receive a letter in the mail telling you the government is taking your land to build a new interstate. What are your rights?
There are several key points to understand about eminent domain. First, the government has the power of eminent domain, which is the inherent ability of a sovereign entity to take private property for the use of the public. The government’s eminent domain powers are absolute and total, limited only by the United States constitutional mandate of public use and just compensation.
Although specific eminent domain laws differ from state-to-state, Tennessee’s Constitution states that “no man’s particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefore.”
The right of eminent domain may be legislatively delegated by the state to a county, municipality, public service corporation, private corporation, or even an individual, subject only to the constitutional limitations that it is exercised for a public use, and that the owner receives just compensation for the property rights taken and any limitations imposed by the specific statutory authority.
The power of eminent domain has been delegated to counties (section 29-17-201) and to municipalities (sections 29-17-301 and 29-17-901). It has also been generally delegated to any person or corporation authorized by law to construct railroads, turnpikes, canals, toll bridges, roads, causeways, or other public improvement works, under the provisions of state code section 29-16-101.
Under Tennessee law, property can only be condemned for a lawful public use. The condemning party must possess the proper delegation of eminent domain authority from the State to condemn property. In all situations, if the right to condemn exists, just compensation must be paid for the property being taken.
Condemning authorities must also obtain an appraisal of the property to be taken. They must file and record right-of-way plans, allow the property owner to examine the required appraisal, and negotiate in good faith with the property owner.
Successful challenges to the government’s right to take are rare. In most cases, the taking is clearly for a public purpose, such as a new road, a sewer, or a power line. However, there can be exceptions, and you should speak with an experienced eminent domain attorney as soon as possible if you have questions about the government’s right to take your land, because the time for challenging the right to take is short.
Assuming the right to take is not challenged, then the sole issue for the case becomes obtaining the just compensation that’s due to the property owner for the property taken.
Article 1, Section 21 of the Tennessee Constitution requires the award of fair cash market value of the property taken to the property owner.
Additional compensation is provided to property owners in condemnation proceedings under Tennessee statutes. Tennessee Code section 29-16-114 states that just compensation includes the value of the land or rights taken without deduction and incidental damages, if any, to the remaining property of the owner. Generally, a property owner has the right to demand a jury to determine the just compensation due.
Fair market value of the property taken is to be established as of the date of taking. The date of taking is the date the condemning authority obtains legal possession of the land, which occurs after a petition for condemnation is filed — assuming the right to take is not challenged.
Fair cash market value means the amount of money that a willing buyer would pay for the property and that a willing seller would accept, when the owner is not compelled to buy, and the landowner is not compelled to sell. In determining fair cash market value, the jury in a condemnation case is instructed to consider all the property’s legitimate potential uses.
The market value of the property is to be determined without regard to any increase or decrease in value because of the announcement or construction of the public improvement for which the property is taken.
In a partial condemnation case, a case in which the owner is left with remaining property, the owner is entitled to any decrease or diminution in the value of the remaining property as additional damages. These incidental damages (known in some jurisdictions as “severance damages”) to remaining property are measured by the difference in the remaining property’s fair cash market value immediately before and immediately after the taking.
Many factors have been recognized as relevant to the determination of incidental damages, including the loss of its use for any lawful purpose, any unsightliness of the property or inconvenience in its use, any impairment to the owner’s access to the property or between the property and nearby streets and highways, and any other consideration that could reduce the fair cash market value of the remaining property.
In general, no. The Tennessee Pattern Jury Instructions guide a jury “not to include in your verdict any sum for loss of business or inconvenience to business, if any.”
To the extent that the condemnation of any parcel of real property requires the removal of furniture, household belongings, fixtures, equipment, machinery, or stock in trade of any person in rightful possession, regardless of whether such person has a legal interest in said property, section 29-16-114 requires that the reasonable expense of the removal of such property shall be considered in the assessment of incidental damages.
The reasonable expense of the removal of such property shall be construed as including the cost of any necessary disconnection, dismantling, or dissembling, the loading and drayage to another location not more than 50 miles distant, and the reassembling, reconnecting, and installing at that location.
Unlike the law in many other states, attorney fees, expert witness fees, and other litigation expenses and costs incurred by an owner in defending a condemnation action are generally not recoverable. According to Tennessee Code sections 29-17-106 and 29-17-912, there are two exceptions to this rule: If the final judgment is that the acquiring party cannot acquire the real property by condemnation, or if the proceeding is abandoned by the acquiring party.
It should be noted, above all, that the specifics of legal issues vary between individual cases. No general guidance can substitute for the advice of a skilled eminent domain attorney, whose advice should be sought at the earliest opportunity after learning of possible or impending action.
This article was written by Kannon Conway and originally appeared in the Memphis Business Journal.