What Property May be Taken Through Eminent Domain?

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An eminent domain action typically is applied to real property (real estate, including buildings and land), but any kind of property may be taken if done within the legal confines of the law (based on the Fifth Amendment's Takings Clause). This includes both tangible and intangible property, such as franchises and contracts. For example, the City of Oakland notoriously tried to claim the Raiders National League Football team through eminent domain, a move blocked by the California Supreme Court in 1982.

The following article discusses which kinds of property may be taken through eminent domain, including property deemed a public risk and that which is "dedicated" to the public outside of the condemnation process.

Property That's Deemed a Risk

Often, governmental units -- particularly at the local level -- begin condemnation proceedings for private property that isn't needed for public use, but rather has been deemed a risk to the public health or safety. This, in fact, is the more appropriate use of the term "condemnation," although the authority or power invoked to condemn the property is that of eminent domain.

For example, the government may decided to condemn and then seize the property of an old shipyard in order to clean up asbestos and other environment pollutants. Any private property may be taken if it's proximity to the clean-up area is deemed unsafe. In this regard, the seizure is done in the best interests of the public even if the land ultimately is never used by the public.

"Dedication" of Land

A "dedication" of land is a similar form of appropriation of private land (or an easement therein) for public use. But instead of going through the adverse process of condemnation, the transfer of property is effected voluntarily by the landowner. A dedication may be express or implied through the landowner's conduct and the facts and circumstances related to the property.

For instance, someone who owns a parcel of property that includes access to a historical site may dedicate this portion of the property to the government.

Notwithstanding, a dedication also may arise following an adverse (to the interests and/or use of the landowner) and exclusive use by members of the public under a claim of right. Such claim, by an adverse public user, is similar to a common law "adverse possession" claim between private parties and is predicated upon the knowledge of and allowance by the owner. Many states provide for both common-law and statutory dedications.

Exceptions for Certain Property

Not all property may be taken for any purpose. Many states prohibit the exercise of eminent domain for property currently being used as:

  • Cemeteries;
  • Gardens and orchards; or
  • Factories.

A landowner can't convert the use of property to one of these uses in order to avoid condemnation once eminent domain proceedings have begun (i.e. filing of a notice of intent).

What Property May be Taken? Learn More From an Eminent Domain Lawyer

It can be confusing trying to wrap your head around exactly what types of property may be taken in an eminent domain action. Courts won't allow takings if they're not for the good of the public or if the landowner isn't compensated fairly. If you believe your property is being unjustly taken, learn more about your options by meeting with an experienced eminent domain attorney near you.

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