In reviewing some of the comments posted on the Honolulu Advertiser's November 1 report  "Rail study doesn't list all affected properties," it seems several of the commenters have fairly severe misconceptions about how eminent domain law works in Hawaii. Let's clear some up some myths.

• Myth #1: The city will offer a "premium" to property owners whose homes, businesses and churches will need to be acquired, because the city will want their properties quickly. Wrong on two counts. First, the city does not need to offer a premium since Hawaii law has a procedure by which the city can take immediate possession of property it wants, "ex parte" (without notice to the landowner). Second, the city will only offer what it believes to be the amount legally required to be paid for "just compensation" and damage, not a penny more. Indeed, the city will claim it is fulfilling its obligation to the rest of the taxpayers when it offers you nothing more than its own valuation.

• Myth #2: The compensation offered and paid will include attorney's fees and costs.  No, the Hawaii Supreme Court has held that the "just compensation" and damages required by the Hawaii Constitution to be offered and paid to property owners whose land is taken does not include attorney's fees and costs the landowner incurs if the property is taken. State v. Davis, 53 Haw. 582, 587, 499 P.2d 663, 687-88 (1972). In that case, the court held:

  We hold in accordance with the overwhelming weight of authority that attorneys' fees and expenses, including expert witness' fees, are not embraced within the meaning of ‘just compensation’ for purposes of article I, section 18 of the Hawaii Constitution [currently article I, section 20].

  How might that work out for the homeowner? Let's say, hypothetically, that you are going to have your home taken to make way for the rail, and you believe it is worth $614,000, the most recent median price of a home in Pearl City. But the city thinks otherwise and offers you $450,000, the most recent median price for a home in Ewa (this is not how valuation is determined, and I am only using these numbers as an example). You show to a jury that the city has grossly undervalued your property, and you eventually win. You have to pay your court costs, your attorney, and your appraiser out of that additional $165,000 the city should have offered you in the first place, so the city's lowball offer has effectively kept you from obtaining the full value of your home.

• Myth #3: I can use the deposit to pay my attorneys to fight the city's taking of my property.  You can, but you've just "abandoned all defenses...except the sufficiency of the compensation or damage award."  So if you take the money the city deposits when it grabs your property, you can't object to the fact that the city is taking your property, just the amount you will receive as compensation and damages.

• Myth #4: I can count on the city treating me fairly and making a reasonable offer.  Good luck with that one. Read this summary by law professor and eminent domain expert Gideon Kanner and see if you still think that this is true.

• Myth #5: A property owner whose land is taken for the rail project can expect high valuation since the rail project will raise the value of properties near transit stations. Questionable. The city will no doubt claim the "scope of the project" rule requires a lower value. The rule says that increases or decreases in value after the scope of the project is known in the market can't be used to determine value of the property taken.

• Myth #6: I just appealed the city valuation of my home for property tax purposes saying it overvalued my home, but my claims of lower valuation can't be used against me in eminent domain. Oh yes they can. State law provides:

  The valuation claimed by the taxpayer in any appeal regarding the assessment of real property tax shall be admissible in evidence as an admission of the fair market value of the real property as of the date of assessment irrespective of the fact that the assessed value from which the taxpayer appealed is adjusted to one hundred per cent fair market value...

In the words of Joe Friday, "your words can and will be used against you in a court of law."

- See more at: http://www.inversecondemnation.com/inversecondemnation/eminentdomainmyths.html#sthash.v3FceQkN.dpuf