What are Severance Damages?
If part of your property is being taken through the eminent domain process (as opposed to a total taking) you are entitled to compensation for any damage caused to your remaining property as a result of the taking. Damage caused to your remaining property is compensable separate from the actual land taking. These types of damages are commonly referred to as severance damages.
Under Wisconsin Law, severance damages are provided for under section 32.09(6)(a)–(g). These additional damages include, but are not limited to, loss of access, loss of air rights, and loss of a legal nonconforming use.
One of the most common issues surrounding severance damages involves access rights. (Wis. Stat. § 32.09(6)(b).) However, landowners do not have the right to identical access before and after the land taking. Rather, a landowner is entitled to compensation if access in the after condition is not “reasonable.”
Therefore, in determining severance damages as a result of loss of access rights, the jury must first determine whether access to the remaining property following the taking is “reasonable.” If the jury finds that access to the remaining property is not reasonable, then the landowner is entitled to compensation for the damage to its right to access the remaining property.
It is very important to work with an experienced eminent domain appraiser to ensure that severance damages are identified and included in the appraisal valuation. Frequently, severance damages may be overlooked by the government agency acquiring your land. What may look like a fair offer at first, may look less desirable when you account for the impact the taking will have on your remaining land.