The business landscape today hinges on digital communications. With each email or text sent, a documented trail of conversation develops. When dealing with right-of-way management — a line of business highly reliant on written communication — all communications should consistently follow best practices in the industry. All written communication, including deleted emails or records, can be uncovered with the right resources and reasoning to do so.
Although it’s preferable to conduct land acquisition negotiations face-to-face with landowners, negotiations are often conducted through written digital communication such as email, especially with absentee landowners. These communications happen constantly, and agents keep detailed notes — from contact information and emails to notes on in-person conversations.
Tools such as a stakeholder data management system facilitate the documentation of landowner interactions and supporting documentation. Through these systems, land agents can capture all contact information; contact reports; copies of emails; the status of acquisition; and copies of key documents such as property surveys, easements and photos. It serves as a repository of documented communication history from day one.
If a client employs eminent domain or if a landowner pursues legal action, all relevant documented information pertaining to that project can be requested and reviewed through legal processes. This evidence is often obtained through discovery devices, such as interrogatories, requests for production of documents, requests for admissions, document subpoenas, and depositions.
In addition to email and data systems with stored information, social media accounts are becoming increasingly subject to discovery. In Kelter v. Flanagan (2018 WL 1439793)(Pa.Com.Pl.), a defendant in a Pennsylvania case was able to compel a plaintiff to provide the defendant’s counsel with Instagram account access, since posts to an account contradicted the claim of injury. However, in Commonwealth v. Mangel (181 A.3d 1154, 2018 PA Super 57)(2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless it can be proven who posted the information, because social media accounts can be hacked.
Tips to Navigate Communications
Land agents are advised to communicate and document facts only. All written communication should be conveyed in an objective, fact-based way, with no opinion expressed. For example, a land agent should not make subjective notes such as, “The landowner was very angry.” Agents should document facts such as, “The landowner stated she was upset about the project and the impact on the view.”
Communication should also focus only on one landowner at a time — it should never reference offers made to other landowners. For example, an agent cannot compare one offer amount with an offer made to a landowner down the road because every property is unique and appraised (formally or informally) based on individual property characteristics.
It is also important for land agents to keep relationships with landowners professional. It is common for land agents to have long-standing relationships with landowners, which can lead to personal relationships. However, be mindful that personal relationships can result in bias during negotiations.
Right-of-way management also rests heavily on the relationship a client has within a community. Negotiations may be influenced by how a community perceives a client’s work in an area. Land agents should understand this relationship when engaging with landowners. Even better, the client’s community outreach group be transparent with the land acquisition team about any recent projects that have experienced community opposition, sharing any articles that may show the client in a negative light. That way, acquisition agents know what kind of issues may come up during negotiations and be prepared to respond as the client expects.
Technology and the ways we communicate are constantly changing, as are the rules and laws pertaining to the use of that technology, so it’s critical to stay current. Land agents can continue to improve their digital communication practices through continuing education opportunities. If the project has a right-of-way contractor, promoting best practices for communication will keep the project on track. Land acquisition initiatives can achieve the most effective results when paired with consistent community outreach.
Initial project success relies heavily on successful public engagement. See how a cohesive land acquisition team can help all project stakeholders understand your project.