Reimbursement of costs, litigation expenses, and attorney’s fees in Illinois is not a constitutional right but rather a matter of legislative grace. The Illinois Constitution (Article I, Section 15) states: “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Courts have interpreted “as provided by law” to mean that these expenses can only be recovered if specifically authorized by statute. They are not automatically granted; the property owner must petition the court for an order to award payment of costs and fees allowed by law.
Generally, there are four situations where a property owner may be entitled to reimbursement of attorney’s fees, litigation expenses, and costs from the condemning authority:
- Court Ruling Against the Right to Condemn: If the court determines that the condemning authority does not have the legal right to acquire the property through eminent domain.
- Voluntary Dismissal or Refusal to Pay: If the condemning authority voluntarily dismisses its lawsuit or fails to pay the just compensation award within the time specified by the final judgment.
- Change in the Property to Be Condemned: If the condemning authority alters the amount of property it intends to acquire after filing the lawsuit, such as adding new property or substituting a different property from what was initially described in the complaint. In this case, the property owner is entitled to reimbursement of reasonable attorneys’ fees, litigation expenses, and costs incurred in defending the original complaint.
- Condemnation for Private Ownership or Control: When private property is being condemned and will ultimately be owned or controlled by a private entity, the Illinois Eminent Domain Act allows the property owner to make a written offer for the amount they would accept as compensation. This offer must be made between the close of discovery and 14 days before the trial. If the condemning authority rejects the offer and the final compensation awarded by the court equals or exceeds the offer, the property owner is entitled to reasonable costs and litigation expenses, as well as attorney’s fees, calculated as follows:
- 33% of the net benefit if the amount is $250,000 or less
- 25% of the net benefit if the amount is more than $250,000 but less than $1 million
- 20% of the net benefit if the amount is $1 million or more
These rules help ensure that property owners are fairly compensated for their legal expenses under specific circumstances.
