Ohio Eminent Domain Laws

In Ohio, all appropriations of real property shall be made pursuant to sections 163.01 to 163.22 of the Revised Code, except as otherwise provided in this section, as otherwise provided to abate a health nuisance or because of a public exigency as provided in division (B) of section 307.08, 6101.181 [6101.18.1], 6115.221 [6115.22.1], 6117.39, or 6119.11 or division (D) of section 504.19 of the Revised Code, or as otherwise provided to abate a health nuisance or because of a public exigency as provided in a municipal charter or ordinance.  The director of transportation may appropriate real property pursuant to sections 163.01 to 163.22 of the Revised Code or as otherwise provided by law.  Notwithstanding any authority to appropriate real property other than under sections 163.01 to 163.22 of the Revised Code, any proceeding to appropriate real property is subject to division (B) of section 163.21 of the Revised Code.  Any instrument by which an agency acquires real property pursuant to this section shall include all of the following:

  • The name of the agency that has the use and benefit of the real property in the manner required by section 5301.012 [5301.01.2] of the Revised Code;
  • A statement of the purpose of the appropriation as provided with the appropriation petition;
  • A statement that the prior owner possesses a right of repurchase pursuant to section 163.211 [163.21.1] of the Revised Code if the agency decides not to use the property for the purpose stated in the appropriation petition and the owner provides timely notice of a desire to repurchase.  Nothing in this section affects the authority of the director of transportation to convey unneeded property pursuant to division (F) of section 5501.34 of the Revised Code.

Nothing in this chapter precludes any person from voluntarily conveying a property to an agency that is considering appropriating the property or that offers to purchase the property under threat of appropriation.  Any such voluntary conveyance of a property to an agency is deemed for all purposes to be a sale under the threat of appropriation for a public use.  This division applies to a voluntary conveyance to an agency regardless of whether the property is a blighted property or is located in a blighted area, or the property subsequently could be found for any reason not to qualify for appropriation by the agency[i].  Any agency may, upon the notice prescribed in this section, prior to or subsequent to the filing of a petition pursuant to section 163.05 of the Revised Code, enter upon any lands, waters, and premises for the purpose of making such surveys, soundings, drillings, appraisals, and examinations as are necessary or proper for the purpose of the agency under sections 163.01 to 163.22, inclusive, of the Revised Code, and such entry shall not constitute a trespass.  Notice of such proposed entry shall be given to the owner or the person in possession by such means as are reasonably available not less than forty-eight hours nor more than thirty days prior to the date of such entry.

The agency shall make restitution or reimbursement for any actual damage, resulting to such lands, waters, and premises and to improvements or personal property located in, on, along, over, or under such lands, waters, and premises, as a result of such activities.  If the parties are unable to agree upon restitution or other settlement, damages are recoverable by civil action to which the state or agency hereby consents[ii].  An agency that has met the requirements of sections 163.04 and 163.041 [163.04.1] of the Revised Code, may commence proceedings in a proper court by filing a petition for appropriation of each parcel or contiguous parcels in a single common ownership, or interest or right therein.

The petition of a private agency shall be verified as in a civil action.  All petitions shall contain:

  • A description of each parcel of land or interest or right therein sought to be appropriated, such as will permit ready identification of the land involved;
  • A statement that the appropriation is necessary, for a public use, and, in the case of a public agency, a copy of the resolution of the public agency to appropriate.  If the property being appropriated is a blighted parcel that is being appropriated pursuant to a redevelopment plan, a statement that shows the basis for the finding of blight and that supports that the parcel is part of a blighted area pursuant to the definition in section 1.08 of the Revised Code.
  • A statement of the purpose of the appropriation;
  • A statement of the estate or interest sought to be appropriated;
  • The names and addresses of the owners, so far as they can be ascertained;
  • A statement showing requirements of section 163.04 of the Revised Code have been met;
  • A prayer for the appropriation.

In the event of an appropriation where the agency would require less than the whole of any parcel containing a residence structure and the required portion would remove a garage and sufficient land that a replacement garage could not be lawfully or practically attached, the appropriation shall be for the whole parcel and all structures unless, at the discretion of the owner, the owner waives this requirement, in which case the agency shall appropriate only the portion that the agency requires as well as the entirety of any structure that is in whole or in part on the required portion.  In the event of the appropriation of less than the fee of any parcel or of a fee in less than the whole of any parcel of property, the agency shall either make available to the owner or shall file in the office of the county engineer, a description of the nature of the improvement or use which requires the appropriation, including any specifications, elevations, and grade changes already determined at the time of the filing of the petition, in sufficient detail to permit a determination of the nature, extent, and effect of the taking and improvement.  A set of highway construction plans shall be acceptable in providing such description for the purposes of the preceding sentence in the appropriation of land for highway purposes[iii].

A public agency, other than an agency appropriating property for the purposes described in division (B) of this section, that qualifies pursuant to Section 19 of Article I, Ohio Constitution, may deposit with the court at the time of filing the petition the value of such property appropriated together with the damages, if any, to the residue, as determined by the public agency, and thereupon take possession of and enter upon the property appropriated.  The right of possession upon deposit as provided in this division shall not extend to structures.

A public agency appropriating property for the purpose of making or repairing roads which shall be open to the public, without charge, or for the purpose of implementing rail service under Chapter 4981 of the Revised Code, may deposit with the court at the time of filing the petition the value of such property appropriated together with the damages, if any, to the residue, as determined by the public agency, and stated in an attached declaration of intention to obtain possession and thereupon take possession of and enter upon the property appropriated, including structures situated upon the land appropriated for such purpose or situated partly upon the land appropriated therefor and partly upon adjoining land, so that such structures cannot be divided upon the line between such lands without manifest injury thereto.  The jury, in assessing compensation to any owner of land appropriated under this division shall assess the value thereof in accordance with section 163.14 of the Revised Code.  The owner or occupant of such structures shall vacate the same within sixty days after service of summons as required under section 163.07 of the Revised Code, after which time the agency may remove said structures.  In the event such structures are to be removed, before the jury has fixed the value of the same, the court upon motion of the agency, shall:

  • Order appraisals to be made by three persons, one to be named by the owner, one by the county auditor, and one by the agency. Such appraisals may be used as evidence by the owner or the agency in the trial of said case but shall not be binding on said owner, agency, or the jury, and the expense of said appraisals shall be approved by the court and charged as costs in said case.
  • Cause pictures to be taken of all sides of said structures;
  • Compile a complete description of said structures, which shall be preserved as evidence in said case to which the owner or occupants shall have access.

Any time after the deposit is made by the public agency under division (A) or (B) of this section, the owner may apply to the court to withdraw the deposit, and such withdrawal shall in no way interfere with the action except that the sum so withdrawn shall be deducted from the sum of the final verdict or award.  Upon such application being made, the court shall direct that the sum be paid to such owner subject to the rights of other parties in interest provided such parties make timely application as provided in section 163.18 of the Revised Code.  Interest shall not accrue on any sums that can be withdrawn, as provided in this division[iv].

Where the residence of the owners is known and is within this state, notice of the filing of a petition as provided in section 163.05 of the Revised Code shall be given to all such owners by serving a summons and a copy of such petition in the manner of service of summons in civil actions.  When the residence of the owners is unknown and as to all who cannot be served within the state, notice shall be given by publishing the substance of the petition and a statement of the date of the filing thereof and of the date on and after which the matter may be heard, once a week for two consecutive weeks in a newspaper of general circulation in the county, or shall be given by registered mail.  When service is made by publication, section 2703.16 of the Revised Code shall be complied with.

Unless a person acquiring any interest in any property described in an appropriation petition after the filing thereof moves to be made an additional party defendant prior to the date that the case is set for the jury trial on compensation or to any journalization of a settlement entry, s/he shall be bound by the final judgment, without right of appeal except as to distribution, and shall receive such compensation as was awarded to his predecessor in interest to the extent that he has succeeded thereto[v].  Any owner may file an answer to such petition. Such answer shall be verified as in a civil action and shall contain a general denial or specific denial of each material allegation not admitted.  The agency’s right to make the appropriation, the inability of the parties to agree, and the necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein; provided, when taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads which shall be open to the public without charge, an answer may not deny the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation.  A petition for appropriation, filed by the director of transportation, which contains a declaration and journalization of his intent to construct a state highway or interstate highway, shall constitute a presumption that such appropriation is for the purpose of making or repairing roads which shall be open to the public without charge.

At a hearing on an issue whether a taking sought by the director of transportation is for the purpose of making or repairing roads open to the public without charge, a set of construction plans made by or for the director and showing the proposed use of the property in connection with the construction or repair of such a road is presumptive evidence of such purpose, notwithstanding that no money has been appropriated for such construction or repair.  An answer shall be served in accordance with Civil Rule 12.  If the agency involved in the action is a private agency, no more than one extension of the time authorized by Civil Rule 12 for serving an answer shall be granted pursuant to Civil Rule 6, and that extension shall not exceed thirty days[vi].

If no answer is filed pursuant to section 163.08 of the Revised Code, and no approval ordered by the court to a settlement of the rights of all necessary parties, the court, on motion of a public agency, shall declare the value of the property taken and the damages, if any, to the residue to be as set forth in any document properly filed with the clerk of the court of common pleas by the public agency.  In all other cases, the court shall fix a time, within twenty days from the last date that the answer could have been filed, for the assessment of compensation by a jury.  When an answer is filed pursuant to section 163.08 of the Revised Code and any of the matters relating to the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation are specifically denied in the manner provided in that section, the court shall set a day, not less than five or more than fifteen days from the date the answer was filed, to hear those matters. Upon those matters, the burden of proof is upon the agency by a preponderance of the evidence except as follows:

  • A resolution or ordinance of the governing or controlling body, council, or board of the agency declaring the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation if the agency is not appropriating the property because it is a blighted parcel or part of a blighted area or slum.
  • The presentation by a public utility or common carrier of evidence of the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation.
  • Approval by a state or federal regulatory authority of an appropriation by a public utility or common carrier creates an irrebuttable presumption of the necessity for the appropriation.

Subject to the irrebuttable presumption in division (B)(1)(c) of this section, only the judge may determine the necessity of the appropriation.  If, as to any or all of the property or other interests sought to be appropriated, the court determines the matters in favor of the agency, the court shall set a time for the assessment of compensation by the jury not less than sixty days from the date of the journalization of that determination, subject to the right of the parties to request mediation under section 163.051 [163.05.1] of the Revised Code and the right of the owner to an immediate appeal under division (B)(3) of this section.  Except as provided in division (B)(3) of this section, an order of the court in favor of the agency on any of the matters or on qualification under section 163.06 of the Revised Code shall not be a final order for purposes of appeal.  An order of the court against the agency on any of the matters or on the question of qualification under section 163.06 of the Revised Code shall be a final order for purposes of appeal.  If a public agency has taken possession prior to such an order and such an order, after any appeal, is against the agency on any of the matters, the agency shall restore the property to the owner in its original condition or respond in damages, which may include the items set forth in division (A)(2) of section 163.21 of the Revised Code, recoverable by civil action, to which the state consents.

An owner has a right to an immediate appeal if the order of the court is in favor of the agency in any of the matters the owner denied in the answer, unless the agency is appropriating property in time of war or other public exigency imperatively requiring its immediate seizure, for the purpose of making or repairing roads which shall be open to the public without charge, for the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181 [6101.18.1], 6115.221 [6115.22.1], 6117.39, or 6119.11 of the Revised Code or by a public utility owned and operated by a municipal corporation as the result of a public exigency.  When an answer is filed pursuant to section 163.08 of the Revised Code, and none of the matters set forth in division (B) of this section is specifically denied, the court shall fix a time within twenty days from the date the answer was filed for the assessment of compensation by a jury.

If answers are filed pursuant to divisions (B) and (C) of this section, or an answer is filed on behalf of fewer than all the named owners, the court shall set the hearing or hearings at such times as are reasonable under all the circumstances, but in no event later than twenty days after the issues are joined as to all necessary parties or twenty days after rule therefor, whichever is earlier.  The court, with the consent of the parties, may order two or more cases to be consolidated and tried together, but the rights of each owner to compensation, damages, or both shall be separately determined by the jury in its verdict.  If an answer is filed under section 163.08 of the Revised Code with respect to the value of property, the trier of fact shall determine that value based on the evidence presented, with neither party having the burden of proof with respect to that value.  If the court determines the matter in the favor of the owner as to the necessity of the appropriation or whether the use for which the agency seeks to appropriate the property is a public use, in a final, unappealable order, the court shall award the owner reasonable attorney’s fees, expenses, and costs[vii].

No delay in the proceedings shall be occasioned by doubt as to the ownership of any property, or as to the interest of the respective owners, but in such cases the court may require the retention of the deposit or award or such portion thereof as the court deems appropriate, until the rights of the respective parties have been determined[viii].  As soon as the agency pays to the party entitled thereto or deposits with the court the amount of the award and the costs assessed against the agency, it may take possession; provided, that this shall not be construed to limit the right of a public agency to enter and take possession, as provided in section 163.06 of the Revised Code.  When the agency is entitled to possession the court shall enter an order to such effect upon the record and, if necessary, process shall be issued to place the agency in possession.  Whenever a final journal entry in an appropriation proceeding, granting to this state a fee title or any lesser estate or interest in real property is filed and journalized by the clerk of courts, the clerk of courts shall forthwith transmit to the county auditor a certified copy of said final journal entry who shall transfer the property on the auditor’s books and transmit said entry with proper endorsement to the county recorder for recording.  The costs of filing such final journal entry with the county auditor and the county recorder shall be taxed as costs in the appropriation proceedings the same as other costs are taxed under section 163.16 of the Revised Code.  Whenever the appropriation of real property requires the owner, a commercial tenant, or a residential tenant identified by the owner in a notice filed with the court to move or relocate, the agency shall make a payment to that person, upon proper application as approved by the agency, for all of the following:

  • Actual reasonable expenses in moving the person and the person’s family, business, farm operation, or other personal property;
  • Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the agency;
  • Actual reasonable expenses in searching for a replacement business or farm, but not to exceed two thousand five hundred dollars;
  • Actual and reasonable expenses necessary to reestablish a farm, nonprofit organization, or small business at its new site, but not to exceed ten thousand dollars.

If the agency does not approve a payment for which the owner applied under division (B)(1) of this section, the trier of fact, upon presentation of proof, shall determine whether to award a payment for the expenses described in division (B)(1) of this section and the amount of any award.  The owner shall have the burden of proof with respect to those expenses.  In addition to any payments an owner of a business may receive under division (B)(1) of this section, an owner of a business who is required by an appropriation of real property to relocate the business may recover damages for the owner’s actual economic loss resulting from the appropriation, as proven by the owner by a preponderance of the evidence.  Compensation for actual economic loss under this division shall not include any attorney’s fees and shall not duplicate any amount awarded as compensation under this chapter.

The amount of compensation awarded under division (B)(3)(a) of this section shall not exceed twelve months net profit of the business on an annualized basis. Except as otherwise provided in division (B)(3)(c) of this section, if the agency is appropriating property in time of war or other public exigency imperatively requiring its immediate seizure, for the purpose of making or repairing roads that shall be open to the public without charge, for the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181 [6101.18.1], 6115.221 [6115.22.1], 6117.39, or 6119.11 of the Revised Code as the result of a public exigency, or the agency is a municipal corporation that is appropriating property as a result of a public exigency, the period for which the net profit of the business is calculated shall be twelve months minus the time period from the date the agency gives the notice required by section 163.04 of the Revised Code to the date the agency deposits the value of the property with the court pursuant to section 163.06 of the Revised Code or pays that amount to the owner, but in no event shall the compensation time period be less than fifteen days.  If the period on which the loss is calculated is reduced to fifteen days and the relocation is unusually complex, the owner may request the agency to increase that period by up to fifteen additional days.  If the agency fails to pay the compensation as provided under division (B)(3)(a) of this section or denies the request, the owner may seek an award of such compensation pursuant to this section.

In case of an act of God or other public exigency that requires an immediate taking of property to protect public health or safety or in case of a voluntary conveyance, the amount of compensation awarded under division (B)(3)(a) of this section shall not exceed fifteen days net profit of the business on an annualized basis.  The owner may request the agency to increase that period by up to fifteen additional days.  If the agency fails to pay the compensation as provided under division (B)(3)(a) of this section or denies the request, the owner may seek an award of such compensation pursuant to this section[ix].

The court costs, including jury fees, of any proceeding shall be paid as the court directs, except as may be provided for in cases subject to division (A)(2) or (B)(1) of section 163.21 of the Revised Code.  The agency may offer to confess judgment for the amount to be stated and the court costs then made in favor of any owner who in any manner enters an appearance or upon whom service has been made.  If such owner refuses to accept such offer and as a result of the trial does not receive more, he shall pay all court costs accruing after the offer[x].  At the time the agency makes a deposit or pays into court the jury award, the clerk of courts shall give notice by ordinary mail of such payment to the counsel of record of each owner and to the known address of owners not represented.  Thereupon any owner may file with the court a motion for distribution.  After reasonable notice to all parties and to any additional interested parties who become known to the court, the court shall hear evidence as to the respective interests of the owners in the property and may make distribution of the deposit or award accordingly[xi].

Subject to sections 163.07 and 163.09 of the Revised Code, any party may prosecute appeals as in other civil actions from the judgment of the court.  The owner may request, and the court may grant, a stay on appeal, provided that the owner posts a supersedeas bond in an amount the court determines[xii].  If it has not taken possession of property that is appropriated, an agency may abandon appropriation proceedings under sections 163.01 to 163.22 of the Revised Code at any time after the proceedings are commenced but not later than ninety days after the final determination of the cause.  In all cases of abandonment as described in division (A)(1) of this section, the court shall enter a judgment against the agency for costs, including jury fees, and shall enter a judgment in favor of each affected owner, in amounts that the court considers to be just, for each of the following that the owner incurred:

  • Witness fees, including expert witness fees;
  • Attorney’s fees;
  • Other actual expenses.

In appropriation proceedings under sections 163.01 to 163.22 of the Revised Code or as authorized by divisions (A) and (B) of section 163.02 of the Revised Code for appropriation proceedings in time of a public exigency under other sections of the Revised Code, if the court determines that an agency is not entitled to appropriate particular property, the court shall enter both of the following:

  • A judgment against the agency for costs, including jury fees;
  • A judgment in favor of each affected owner, in amounts that the court considers to be just, for the owner’s reasonable disbursements and expenses, to include witness fees, expert witness fees, attorney’s fees, appraisal and engineering fees, and for other actual expenses that the owner incurred in connection with the proceedings.

Any award to an owner pursuant to this section shall be paid by the head of the agency for whose benefit the appropriation proceedings were initiated.  Except as otherwise provided in division (C)(2) or (3) of this section and subject to division (C)(5) of this section, when an agency appropriates property and the final award of compensation is greater than one hundred twenty-five per cent of the agency’s good faith offer for the property or, if before commencing the appropriation proceeding the agency made a revised offer based on conditions indigenous to the property that could not reasonably have been discovered at the time of the good faith offer, one hundred twenty-five per cent of the revised offer, the court shall enter judgment in favor of the owner, in amounts the court considers just, for all costs and expenses, including attorney’s and appraisal fees, that the owner actually incurred.

The court shall not enter judgment for costs and expenses, including attorney’s fees and appraisal fees, if the agency is appropriating property in time of war or other public exigency imperatively requiring its immediate seizure, for the purpose of making or repairing roads that shall be open to the public without charge, for the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181 [6101.18.1], 6115.221 [6115.22.1], 6117.39, or 6119.11 of the Revised Code as the result of a public exigency, or the agency is a municipal corporation that is appropriating property as a result of a public exigency, except that the court shall enter judgment in favor of the owner for costs and expenses, including attorney’s and appraisal fees, that the owner actually incurred only if the property being appropriated is land used for agricultural purposes as defined in section 303.01 or 519.01 of the Revised Code, or the county auditor of the county in which the land is located has determined under section 5713.31 of the Revised Code that the land is “land devoted exclusively to agricultural use” as defined in section 5713.30 of the Revised Code and the final award of compensation is more than one hundred fifty per cent of the agency’s good faith offer or a revised offer made by the agency under division (C)(1) or (3) of this section.

The court shall not enter judgment for costs and expenses, including attorney’s fees and appraisal fees, that the owner actually incurred if the owner and the agency exchanged appraisals prior to the filing of the petition and the final award of compensation was not more than one hundred twenty-five per cent of the agency’s first offer for the property made subsequent to the exchange of appraisals and at least thirty days before the filing of the petition.  An award of costs and expenses, including attorney’s and appraisal fees, that the owner actually incurred, under division (C) of this section shall not exceed the lesser of twenty-five per cent of the amount by which the final award of compensation exceeds the agency’s initial good faith offer or revised offer or twenty-five per cent of the amount by which the final award of compensation exceeds the agency’s last written offer made not less than forty-five days before the date initially designated for trial by the court.

An award of costs and expenses, including attorney’s and appraisal fees, that the owner actually incurred, made under division (G) of section 163.09 of the Revised Code is not subject to the conditions and limitations set forth in divisions (C)(1), (2), (3), and (4) of this section.  The court shall not enter judgment for costs and expenses, including attorney’s fees and appraisal fees, under division (C) of this section unless not less than fifty days prior to the date initially designated by the court for trial the owner provided the agency with an appraisal or summary appraisal of the property being appropriated or with the owner’s sworn statement setting forth the value of the property and an explanation of how the owner arrived at that value[xiii].

[i] ORC Ann. 163.02.

[ii] ORC Ann. 163.03.

[iii] ORC Ann. 163.05.

[iv] ORC Ann. 163.06.

[v] ORC Ann. 163.07.

[vi] ORC Ann. 163.08.

[vii] ORC Ann. 163.09.

[viii] ORC Ann. 163.13.

[ix] ORC Ann. 163.15.

[x] ORC Ann. 163.16.

[xi] ORC Ann. 163.18.

[xii] ORC Ann. 163.19.

[xiii] ORC Ann. 163.21.


Inside Ohio Eminent Domain Laws