Page 26 - March 14-April 4, 2023 WORLDWIDE LOCATIONS United States Europe, Middle East Asia, Latin America Greenberg Traurig is a service mark and trade name of Greenberg Traurig,LLP and Greenberg Traurig,P.A.©2023 Greenberg Traurig, LLP. Attorneys at Law. All rights reserved. Attorney Advertising. °These numbers are subject to uctuation. 38014 GREENBERG TRAURIG, LLP | 2650 AT TORNEYS | 44 LOCATIONS WORLDWIDE ° 1144 15th Street | Suite 3300 Denver, CO 80202 | 303.572.6500 GTL AW.COM GT Denver’s Real Estate Team Christopher Neumann Katy O’Brien Neil Oberfeld Keith Pockross Carlos Schidlow Paul Seby Christopher Thorne Matthew Tieslau Mark Baker Alex Cain Stephen Goler Peter Kelley Brady McShane Our goal is to provide more than just legal services to our clients. We aim to be a partner to clients, supporting their business objectives through innovative legal o erings in the real estate sector. We are pleased to announce Uriel Martinez has become an Associate of the Firm Mr. Martinez’s practice will focus on Business Litigation, including real estate and business disputes, along with Construction Litigation. Our clients rely on our experienced team of lawyers to guide them through all of their legal needs, from signi cant business decisions to the most complex global deals and litigation. Our breadth and depth of practice enable us to handle the most complex matters and solve our clients’ problems seamlessly. 1700 Lincoln Street, Suite 2100 Denver, Colorado 80203 303-298-1122 Law & Accounting I n Colorado, condemning authorities cannot initiate any condemnation action with- out first making a “reasonable” and “good faith” offer to purchase the property. C.R.S. § 38–1–121(3); C.R.S. §38–1–102(1); Town of Sil- verthorne v. Lutz, 2016 COA 17, ¶ 29. These generic and inherently ambiguous terms can create pit- falls for condemning authorities. Merriam Webster defines “good faith” as “honesty or lawfulness of purpose.” Similarly, “reason- able” is defined as “as much as is appropriate or fair.” As an emi- nent domain practitioner, in every instance in which I have had to file a petition for condemnation, I have yet to see a situation where a condemning authority and land- owner agreed about what com- pensation was “appropriate,” “fair” or “honest.” Given these varied opinions about what con- stitutes a reasonable good faith offer, courts have provided some guidance with respect to what is and is not required to meet this standard. What is Required • The offer must be in a “rea- sonable” amount. • The offer must be in writing. • If the value of the property taken is more than $5,000, the offer must expressly tell the landown- er that they have the right to obtain an appraisal that the condemn- ing authority must pay for. •The prop- erty being taken must be identi- fied by attaching the proposed deed (either easement or fee) and a legal description/sketch. • The offer must give the landowner a “sufficient time to respond.” • If the condemning author- ity ultimately files a petition to acquire the property, the petition must plead that the condemning authority met this jurisdictional prerequisite. What is Not Required • Once the written offer is made, no actual negotiation is required. • The parties do not need to speak face-to-face. • If the landowner responds with a counteroffer, the condemn- ing authority does not have to increase its initial offer. • While the landowner has 90 days to obtain an appraisal of the property if the value of the prop- erty is more than $5,000, the con- demning authority does not have to wait for the appraisal before filing a condemnation action. • There are no requirements that the appraisal, construction drawings, sketches or any proj- ect documents be attached to the written offer. Tips for Meeting the Standard • Base any offer on an indepen- dent eminent domain appraisal of the property. Do not guess as to the value. Do not base the offer solely on an analysis of compa- rable sales. Make sure to evaluate whether the taking will result in any damages to the remainder of the property. • Give the landowner at least 30 days to respond to the initial offer. If there is an emergency that may justify less than 30 days, make sure to discuss those issues with an eminent domain lawyer. • If the landowner either (1) fails to respond to the offer with- in the time stated in the written notice, or (2) makes a counterof- fer that the condemning authority does not accept, the condemning authority can file its petition in condemnation with the court. Because courts have set a low bar to establish a “reasonable” and “good faith” offer, the above requirements and tips are the minimum steps necessary before filing litigation. Condemning authorities should endeavor not to merely meet this standard, but to exceed it. In addition to the above requirements, condemn- ing authorities should consider engaging in the following best practices to greatly reduce the chances that litigation will be nec- essary at all. Best Practices to Reduce Litigation • Start by contacting the land- owner directly to explain the proj- ect and the need for the landown- er’s property. • Provide the landowner with as much information as possible – descriptions of the project, timing of the project, construction draw- ings, legal descriptions, etc. • Before sending the formal written offer, tell the landowner that it is coming and assure the landowner that the formal writ- ten offer is solely meant to advise them of their rights and that the condemning authority still wants to reach an agreement without litigation. • Consider offering more than the appraised value of the prop- erty in the written offer. If the landowner is ultimately awarded more than 110% of the condemn- ing authority’s last and final writ- ten offer, the condemning author- ity will have to pay the land- owner’s attorney fees. Therefore, the amount of the last and final written offer should be carefully analyzed with an appraiser and eminent domain lawyer. s Condemnation negotiations: Reasonable good faith offer Jamie Cotter Attorney, Spencer Fane Consider offering more than the appraised value of the property in the written offer.