Eminent Domain: Property to be Taken

Although most often an eminent domain action is applied to real property (real estate, including buildings), any kind of property may be taken. This includes both tangible and intangible property, such as franchises and contracts.

Property That is Deemed a Risk

Often, governmental units -- particularly at the local level -- begin condemnation proceedings for private property that is not 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.

"Dedication" of Land

A "dedication" of land is a similar form of appropriation of private land (or an easement therein) for public use, but is effected voluntarily by the landowner, rather than through an adverse process of condemnation. A dedication may be express or implied through the landowner's conduct and the facts and circumstances related to the property. 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, actual or imputed, and acquiescence of the owner. Many states provide for both common-law and statutory dedications.

Exceptions for Certain Property

Not all property can be appropriated or condemned 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 cannot 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).

Next Steps

Contact a qualified real estate to help you navigate land use issues including zoning, easements and eminent domain.

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