It is one of the most common assumptions made by clients in litigation: “If I win, the other side will have to pay my attorney’s fees, right?” Unfortunately, that assumption is often wrong—especially in North Carolina. The short answer is: usually not.
The Default Rule: You Pay Your Own Attorney
North Carolina generally follows the “American Rule” when it comes to legal fees. Although an owner’s constitutional right to be made whole in condemnation cases should mean that owners are reimbursed for litigation expenses when a condemnor seeks to take the owner’s property for less than its value, courts have not yet given full protection to those constitutional rights. That means, as the law stands today, each party pays their own attorney—win or lose—unless a specific statute says otherwise.
Even if you win your case and the jury awards you ten times more than the government originally offered, you typically will not recover the attorney’s fees or litigation costs you paid to get there. Owners represented by Cranfill Sumner are currently challenging this issue in their effort to be made whole.
Are There Any Current Exceptions?
Currently, there are limited exceptions where a condemnee (the landowner) might recover attorney’s fees or additional compensation:
- Bad Faith or Abuse of Power: In rare cases, if the condemning authority acted in bad faith or abused the condemnation process, the court might award attorney’s fees as a sanction. But this is the exception, not the rule.
- Inverse Condemnation, Dismissal, or Abandonment: Owners may recover fees and costs in inverse condemnation cases or when a direct condemnation action is dismissed or abandoned.
- Statutory Allowances in Other States: Some other states have statutes that allow for fee recovery in condemnation cases when the final award exceeds the initial offer by a significant margin. However, North Carolina does not have a general statute like this.
- Federal Cases: In federal eminent domain proceedings, certain laws (like the Equal Access to Justice Act) may allow for attorney’s fees in specific circumstances. But again, these do not usually apply in state court condemnation cases in North Carolina.
What Costs Are Currently Recoverable?
Even though attorney’s fees are not typically recoverable, you may be entitled to certain statutory costs—such as:
- Expert’s time testifying in court
- Expert’s travel and lodging
- Some deposition or transcript costs
However, these recoverable costs are limited and do not include the full range of expenses incurred in preparing and presenting your case. They barely scratch the surface of the costs owners incur despite the fact that the condemnor typically has unleashed the full force and machinery of the State against the owner.
What This Means for Property Owners
Good legal representation can certainly put an owner in a much better position financially than the owner would have occupied without representation. However, until the courts recognize that the constitutional right to just compensation remains unfulfilled without reimbursement for litigation expenses, owners must realize that the law, as currently interpreted by the courts, prohibits the full measure of justice. You have the right to challenge the government’s offer and fight for full and fair compensation—but you will likely be responsible for your own legal fees in doing so.
That is why working with an experienced eminent domain attorney is so important. A skilled attorney can help you evaluate whether the compensation you are offered is truly just and whether the potential increase in value justifies the legal costs involved.
Bottom Line:
In North Carolina land condemnation cases, do not count on the government footing your legal bill. Understanding how attorney’s fees and costs work upfront can help you make smarter decisions during a difficult process. The author firmly believes that owners have a constitutional right to reimbursement in condemnation cases and is challenging this issue on behalf of property owners he successfully represented at trial. For further discussion regarding reimbursement for litigation expenses, see Attorney’s Fees and Costs in Eminent Domain Cases.
