It is a little known but very valuable fact for real property owners that, uder recently enacted law, a condemnee who is successful in obtaining a condemnation award substantially above the amount originally offered can now generally recover all or most of its legal and expert witness costs. New York State struggled for many years before resolving the conundrum of providing just compensation for property taken by the State and its municipalities while functioning within the American legal system where a litigant generally must absorb all or practically all of its legal and expert fees.
A property owner awarded the full market value of its condemned property by a court quite obviously does not receive the “just compensation” guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, �7 of the New York State Constitution if it is still out of pocket for substantial attorney, appraisal and engineering fees. Nevertheless, the Court of Appeals has held, in Hakes v. State, 81 NY2d 392, 398, 599 NYS2d 498, 501 (1993), that recovery of fees and costs is not a constitutional right:
