Is the Property Owner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

The reimbursement of costs, litigation expenses, and attorney’s fees is a matter of legislative grace, not constitutional entitlement. The Illinois Constitution, Article I, Section 15 provides, “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Illinois courts have interpreted the phrase “as provided by law” to mean that attorney fees and costs are not recoverable from the condemning authority unless specifically authorized by statute. These costs and fees are not automatic; rather, the property owner must petition the court for an order awarding payment of costs and fees recoverable under statute.

Generally, there are four instances when a property owner is entitled to reimbursement of attorneys’ fees, litigation expenses, and costs from the condemning authority.

• First, when a court rules that the condemning authority does not have the right to acquire the property by eminent domain.
• Second, when the condemning authority voluntarily dismisses its lawsuit or refuses to pay the just compensation award after final judgment within the time provided by court order.
• Third, if the condemning authority changes the amount of property it needs to condemn after filing its eminent domain lawsuit, for example adding new property or substituting other property for that originally described in the complaint for condemnation, the property owner is entitled to reimbursement of reasonable attorneys’ fees, litigation expenses, and costs in defending the original complaint.
• Lastly, in cases involving the condemnation of private property where the acquired property will be owned or controlled by a private entity, the Illinois Eminent Domain Act provides that a property owner may make a written offer of the amount of compensation that the property owner will accept for the property between the close of discovery and 14 days before the commencement of trial. If the condemning authority does not accept the offer and the final just compensation award determined by the trier of fact is equal to or in excess of the written offer, then the property owner is entitled to reasonable costs and litigation expenses as well as attorneys’ fees calculated as follows:
  1. 33% of the net benefit if the net benefit is $250,000 or less;
  2. 25% of the net benefit if the net benefit is more than $250,000 but less than $1 million; or
  3. 20% of the net benefit if the net benefit is $1 million or more.