Eminent Domain Report

Major infrastructure projects have complicated schedules. Design, environmental review, funding, permitting, utilities and construction all must line up. But one item tends to always get squeezed at the end of the project schedule: acquiring the property rights the project needs. That can be an expensive mistake.

Right-of-way acquisition takes time. Before an agency or utility can obtain possession, it may need to identify the precise property interest required, review title, complete an appraisal, make an offer, negotiate with the owner and, if negotiations are unsuccessful, proceed through the condemnation process. If those steps begin too late, right of way can become the critical path to construction.

The answer, however, is not simply to start acquiring property as early as possible. Acquiring too early can create its own problems. Project design may still change. Environmental review may affect the selected alternative. An easement may move. The amount of property needed may shrink—or grow. And committing to a particular acquisition before the project is sufficiently developed can create unnecessary cost and risk.

So when should the right-of-way process begin? In my experience, the better question is: When should the right-of-way team become involved? Usually, much earlier than the acquisition itself. Early involvement allows the real estate team to identify ownership and title issues, flag difficult parcels, evaluate whether the proposed property rights match the project’s actual needs, develop realistic acquisition budgets and schedules, and identify potential impacts to access, parking, development or business operations. Those issues can then inform project design before decisions become expensive to change. This is especially important on large infrastructure projects involving dozens—or hundreds—of parcels. One unusually complicated property can affect an entire construction schedule.

The same principle applies from the property-owner side. When an owner learns that a future project may affect its property, waiting for the formal offer can mean missing the best opportunity to address access, design, easement language or other practical impacts.

Having worked with agencies and utilities acquiring property, as well as owners and businesses affected by public projects, I’ve seen the same lesson from both perspectives: the right time to think about right of way is well before right of way becomes the problem.