Don’t leave severance damages behind - by Sebastian Jablonski

When the government takes a portion of a landowner’s property, most assume just compensation stops at the value of the land taken. However, in partial takings, that is only half of the equation. Damages to the property that remains are often overlooked and are known as severance damages.

Under the before and after methodology recognized by the state of New York, just compensation equates to the difference between the fair market value of the entire property before the vesting date, and the value of the remaining property immediately after. The value of the remainder property can drop significantly, especially if the taking disrupted how the property operated.

Severance damages arise to the remaining property. These damages may include: loss of required parking, new zoning nonconformities, diminished visibility, loss of access, etc.

Unlike land which was actually taken, severance damages are not as clear cut. To determine severance damages, it may require expert prediction and legal analysis of what can realistically happen to the remainder property due to the taking. That prediction rests on reasonable probability and not mere speculation.

The law is clear; the property owner must be compensated as if the taking has never occurred. Too often, the government pays only for the property physically taken and stops there. They tend to forget the damages that arise to the property which remains.

Don’t let compensation stop at the taking line. There could be more damages sustained to what remains. Don’t leave those damages behind.

Sebastian Jablonski is an attorney and a member of the tax certiorari practice group at Forchelli Deegan Terrana LLP, Uniondale, N.Y.