An owner who beats the condemning authority’s last written offer by more than 40 percent is entitled to reasonable attorney fees under Minn. Stat. § 117.031(a). In County of Dakota v. Cameron, 839 N.W.2d 700 (Minn. 2013), the owner did exactly that — and the district court cut his fee request from $217,991.45 to $161,964.50. The supreme court affirmed the cut:
The flaw in Cameron’s argument, however, is that the 40-percent requirement constitutes a minimum eligibility threshold for an award of attorney fees. The requirement does not establish a threshold at which the results obtained become irrelevant to determining whether an award of attorney fees is reasonable.
Id. at 712. Entitlement and amount are two separate questions in Minnesota condemnation, and the statute answers only the first one.
Minnesota’s condemnation statutes do measure compensation by things other than the market value of the parcel — the going-concern value of a destroyed business, the cost of a comparable property in the same community, relocation benefits, and the owner’s own legal and appraisal costs. They arrived together: as Justice Anderson noted in Cameron, § 117.187 “was enacted as part of a broader set of eminent domain reforms that followed in the wake of the Kelo decision.” Id. at 713 (Anderson, J., concurring in part and dissenting in part). Each carries conditions, and the conditions are where these cases turn.
When does the condemning authority have to pay my attorney fees?
Two bands, a floor, and an exclusion, all in one paragraph of § 117.031(a).
The mandatory band. “If the final judgment or award for damages, as determined at any level in the eminent domain process, is more than 40 percent greater than the last written offer of compensation made by the condemning authority prior to the filing of the petition, the court shall award the owner reasonable attorney fees, litigation expenses, appraisal fees, other experts fees, and other related costs in addition to other compensation and fees authorized by this chapter.”
The discretionary band. “If the final judgment or award is at least 20 percent, but not more than 40 percent, greater than the last written offer, the court may award reasonable attorney fees, expenses, and other costs and fees as provided in this paragraph.” Between 20 and 40 percent there is no entitlement — the verb changes.
The floor. “No attorney fees shall be awarded under this paragraph if the final judgment or award of damages does not exceed $25,000.”
The exclusion. “For the purposes of this section, the ‘final judgment or award for damages’ does not include any amount for loss of a going concern unless that was included in the last written offer by the condemning authority.” A large going-concern recovery generally does not drive the percentage.
The same paragraph fixes the valuation date: “The final judgment or award of damages shall be determined as of the date of taking.” And paragraph (b) adds an unconditional route with no percentage test at all: “In any case where the court determines that a taking is not for a public use or is unlawful, the court shall award the owner reasonable attorney fees and other related expenses, fees, and costs in addition to other compensation and fees authorized by this chapter.”
Is the comparison against the authority’s appraisal or against its offer?
Against the last written offer, and nothing else. The two numbers are not the same and they live in different statutes.
Section 117.031(a) says “the last written offer of compensation made by the condemning authority prior to the filing of the petition.” The approved appraisal appears elsewhere: § 117.042 requires a petitioner who wants title and possession before the commissioners file their award to “pay to the owner or deposit with the court an amount equal to petitioner’s approved appraisal of value,” after 90 days’ certified-mail notice of intent to possess.
So the approved appraisal sets the quick-take deposit and the § 117.187 floor; the last written offer sets the fee-shifting benchmark. An authority whose offer sits below its own appraisal has widened its own fee exposure, and an owner who never received a written offer before the petition has a threshold question to raise.
The owner is not left guessing at either number: § 117.036, subd. 2(a) requires the acquiring authority to give the owner a copy of each appraisal for acquisitions above $25,000 “at the time an offer is made, but no later than 60 days before presenting a petition under section 117.055.” On burden allocation in valuation fights generally, see Whoever Carries the Burden on Value Usually Loses.
If I clear 40 percent, will the court award my actual fees?
No. The threshold decides eligibility; the lodestar decides the number.
Cameron held that “the lodestar approach governs the determination of the reasonableness of an award of attorney fees under Minn.Stat. § 117.031(a).” 839 N.W.2d at 711. That imports the full reasonableness inquiry — hours reasonably expended, a reasonable hourly rate, and the traditional Minnesota factors, among them the amount involved and the results obtained. The district court there found five lodestar factors favored the owner’s full request and cut the award anyway; the supreme court called that explanation “somewhat cryptic” but found no abuse of discretion, noting a court may “simply reduce the award to account for the limited success.” Id. at 711–12.
Plan accordingly. A contingent or hybrid fee arrangement does not set the recoverable number, and arguments pressed and lost can reduce a fee award even where the result cleared 40 percent. See The Attorney Fee-Shifting Map.
What is loss of going concern, and who has to prove what?
The owner shows destruction; the condemning authority then carries the burden on three statutory defenses, by a preponderance of the evidence.
Section 117.186, subd. 2 is a conditional entitlement with an express burden allocation: “If a business or trade is destroyed by a taking, the owner shall be compensated for loss of going concern, unless the condemning authority establishes any of the following by a preponderance of the evidence.” There are three, and any one defeats the claim:
- “the loss is not caused by the taking of the property or the injury to the remainder”;
- “the loss can be reasonably prevented by relocating the business or trade in the same or a similar and reasonably suitable location as the property that was taken, or by taking steps and adopting procedures that a reasonably prudent person of a similar age and under similar conditions as the owner, would take and adopt in preserving the going concern of the business or trade”; and
- “compensation for the loss of going concern will be duplicated in the compensation otherwise awarded to the owner.”
Subdivision 1 supplies the definitions that do the work. “Going concern” means “the benefits that accrue to a business or trade as a result of its location, reputation for dependability, skill or quality, customer base, good will, or any other circumstances resulting in the probable retention of old or acquisition of new patronage.” And “owner” here “has the meaning given in section 117.025 and includes a lessee who operates a business on real property that is the subject of an eminent domain proceeding” — a wider class than the minimum-compensation statute allows.
Two short deadlines control the claim. Under subdivision 3, “[t]he owner shall notify the condemning authority of the owner’s intent to claim compensation for loss of going concern within 60 days of the first hearing before the court, as provided in section 117.075.” And under § 117.036, subd. 5, “[d]ocumentation related to a loss of going concern claim made under section 117.186 must not be used or considered in a condemnation commissioners’ hearing unless the documentation is provided to the opposing party at least 14 days before the hearing.” The commissioners decide “in the first instance,” with appeal under § 117.145.
Subdivision 4 is a separate remedy requiring no taking of the parcel, and here the burden sits on the owner: compensation “not to exceed the three previous years’ revenues minus the cost of goods sold,” if the owner establishes that a government entity’s actions “permanently eliminated 51 percent or greater of the driveway access into and out of a business” and that revenue fell 51 percent or greater as a result. The claim must be made “no later than one year after completion of the project which eliminated the driveway access,” and the statute forecloses the most common theory: “The installation of a median does not constitute elimination of driveway access.” See Easements and Access Disputes.
What does the minimum-compensation statute guarantee?
A floor measured by a comparable property in the community, for fee owners only, with no burden of proof assigned by the text. Section 117.187 is two sentences:
When an owner must relocate, the amount of damages payable, at a minimum, must be sufficient for an owner to purchase a comparable property in the community and not less than the condemning authority’s payment or deposit under section 117.042, to the extent that the damages will not be duplicated in the compensation otherwise awarded to the owner of the property. For the purposes of this section, “owner” is defined as the person or entity that holds fee title to the property.
Note the narrowing. Chapter 117’s general definition at § 117.025, subd. 3 makes “owner” include “all persons with any interest in the property subject to a taking, whether as proprietors, tenants, life estate holders, encumbrancers, beneficial interest holders, or otherwise.” Section 117.187 overrides that for itself: fee title only. A tenant may hold a going-concern claim and no minimum-compensation claim.
Cameron supplied the two definitions the Legislature omitted. On geography, the court held “that the term ‘community’ in the minimum-compensation statute means an identifiable locality that has a socially or governmentally recognized identity, or a group of such localities,” which “could be a neighborhood, district, town, village, city, county, region, or other similar locality.” 839 N.W.2d at 706–07. That boundary is dispositive: “Properties located beyond the condemned property’s ‘community’ cannot provide the basis for damages under the minimum-compensation statute.” Id. at 706.
On the comparison property, the court rejected the owner’s two narrowings — functional equivalence and contemporaneous availability — and held that “the phrase ‘comparable property’ in the minimum-compensation statute refers to an existing property—regardless of its availability for purchase—that has enough like characteristics or qualities to another property that the value of one can be used to determine the value of the other.” Id. at 710. The statute’s objective “is to adequately compensate displaced property owners, not to guarantee them the opportunity to purchase a comparable property.” Id.
On burden, say only what the sources say. Section 117.186, subd. 2 assigns the burden expressly and names the standard. Section 117.187 does neither — it has no burden-allocating language, and Cameron announced none. Justice Anderson’s separate opinion flagged the gap, observing that the statute “does not define the word ‘community’ or ‘comparable property,’ nor does it define the term ‘relocate.’” Id. at 714 (Anderson, J., concurring in part and dissenting in part). Treat the comparable property in the community as a fact question won on evidence.
Two related limits matter. Section 117.188: “[t]he condemning authority must not require the owner to accept as part of the compensation due any substitute or replacement property.” And relocation benefits sit outside the damages award — § 117.52, subd. 1 makes the acquiring authority supply the federal Uniform Relocation Act package as a cost of acquisition where federal financial participation is absent, with nonresidential reestablishment expenses reimbursable “up to a maximum of $50,000” under subdivision 1a. Subdivision 4 puts the procedural burden on the government: if the owner rejects the authority’s determination or denial, “the acquiring authority must initiate contested case proceedings,” and “[t]he acquiring authority must pay all costs of the proceedings.”
Does any of this apply if a utility or pipeline is condemning my land?
Often not. Section 117.189(a) switches off seven of these provisions — §§ 117.031; 117.036; 117.055, subd. 2(b); 117.186; 117.187; 117.188; and 117.52, subds. 1a and 4 — for “the use of eminent domain authority by public service corporations for any purpose other than construction or expansion of”:
- “a high-voltage transmission line of 100 kilovolts or more, or ancillary substations”;
- “a natural gas, petroleum, or petroleum products pipeline, or ancillary compressor stations or pumping stations”; or
- “a light rail transit or bus rapid transit line.”
“Public service corporation” is defined broadly at § 117.025, subd. 10 — utilities, gas, electric, telephone and cable companies, cooperative associations, pipeline companies, municipal utilities, a “municipality when operating its municipally owned utilities,” and a municipality or public corporation operating an airport, a common carrier, a watershed district, or drainage authority.
So the first question in any condemnation file is who is taking, and for what project. For a public service corporation on a project outside those three categories, the fee statute, the going-concern statute, and the minimum-compensation statute are off the table.
What deadlines run, and from what?
Four, each from a different trigger.
- 60 days after service of the order approving the taking, to challenge public use, public purpose, necessity, and authority. § 117.075, subd. 1(c).
- 60 days from the first hearing before the court, to give notice of intent to claim loss of going concern. § 117.186, subd. 3.
- 40 days from the date the commissioners’ report is filed, to appeal the award to district court; if any party appeals, “any other party may appeal within 50 days from the date that the report was filed.” § 117.145.
- One year after completion of the project, for a driveway-access claim. § 117.186, subd. 4.
The § 117.145 clock is the one that surprises people: it runs from the filing of the report, not from service on the owner. See also Minnesota Appeal Deadlines and What Is Appealable and Tax Forfeiture Surplus After Tyler.
Madgett Law, LLC
Madgett Law, LLC represents Minnesota property and business owners in condemnation — commissioners’ hearings and appeals to district court, going-concern and minimum-compensation claims, driveway-access claims, and attorney-fee applications under § 117.031. If you have received a notice of intent to possess, an offer letter, or a condemnation petition, send us a message or call 612-470-6529.
Sources: Minn. Stat. § 117.031 (Minnesota Office of the Revisor of Statutes), paragraph (a) (mandatory fee award where the final judgment or award is more than 40 percent greater than the last written offer of compensation made prior to the filing of the petition; discretionary award in the 20-to-40 percent band; damages determined as of the date of taking; no fees where the final judgment or award does not exceed $25,000; exclusion of loss of going concern from “final judgment or award for damages” unless included in the last written offer) and paragraph (b) (mandatory fees where the taking is not for a public use or is unlawful). Minn. Stat. § 117.186, subd. 1(1)–(2) (definitions of “going concern” and of “owner,” including a business lessee), subd. 2 (entitlement on destruction of a business or trade unless the condemning authority establishes one of three enumerated defenses by a preponderance of the evidence), subd. 3 (60-day notice of intent to claim; commissioners determine in the first instance under § 117.105; appeal under § 117.145), and subd. 4 (driveway access; 51 percent elimination and 51 percent revenue reduction; cap at three previous years’ revenues minus cost of goods sold; one-year claim deadline; median installation excluded). Minn. Stat. § 117.187 (minimum compensation; comparable property in the community; floor at the condemning authority’s payment or deposit under § 117.042; no duplication; “owner” limited to the holder of fee title). Minn. Stat. § 117.025, subd. 3 (chapter-wide definition of “owner”) and subd. 10 (definition of “public service corporation”). Minn. Stat. § 117.036, subd. 2(a) (appraisal required above $25,000; copy to owner at the time of offer and no later than 60 days before presenting a petition), subd. 2(b) (owner’s appraisal reimbursement at $3,000 / $10,000, with the five-day submission condition), subd. 2(c) (payment within 30 days), and subd. 5 (14-day production of going-concern documentation). Minn. Stat. § 117.042 (deposit or payment equal to the petitioner’s approved appraisal of value; 90-day notice of intent to possess). Minn. Stat. § 117.075, subd. 1(c) (60-day appeal of the order approving public use, purpose, necessity, and authority). Minn. Stat. § 117.085 (commissioners’ discretionary appraisal-fee allowance at $1,500 / $5,000 unless reimbursed under § 117.036). Minn. Stat. § 117.105, subd. 1 (commissioners’ report due within 90 days of the appointing order, subject to extension). Minn. Stat. § 117.145 (40-day appeal from the filing of the report; 50-day cross-appeal). Minn. Stat. § 117.188 (no forced acceptance of substitute or replacement property, or of the return of acquired property). Minn. Stat. § 117.189(a) (seven provisions inapplicable to public service corporations except for the three enumerated project types) and (b) (appraisal-fee caps for public service corporation takings). Minn. Stat. § 117.52, subd. 1 (Uniform Relocation Act benefits as a cost of acquisition where federal participation is lacking), subd. 1a ($50,000 nonresidential reestablishment cap), and subd. 4 (acquiring authority must initiate contested case proceedings and must pay all costs). Case authority, verified against the Caselaw Access Project archive: County of Dakota v. Cameron, 839 N.W.2d 700 (Minn. 2013), at 706 (properties outside the community cannot provide the basis for minimum-compensation damages), 706–07 (“community” means an identifiable locality with a socially or governmentally recognized identity, or a group of such localities), 710 (“comparable property” means an existing property regardless of availability for purchase; the statute provides monetary compensation rather than a replacement property), 711 (lodestar governs reasonableness under § 117.031(a)), and 712 (the 40 percent requirement is a minimum eligibility threshold; results obtained remain relevant; no abuse of discretion in reducing the award); and at 713 and 714 (Anderson, J., concurring in part and dissenting in part, on the 2006 reform package and on the statute’s undefined terms). Whether a particular business was “destroyed by a taking,” what locality constitutes the relevant “community,” whether a given property is “comparable,” and whether an owner “must relocate” are fact questions this article does not resolve.
This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no particular outcome is promised or implied. Statutes and case law change; verify the current authority before relying on anything discussed here.