Eminent Domain

Eminent domain refers to the power of the government to take private land for public use in certain circumstances. There are different types of takings, including regulatory takings and temporary takings.

The government may take someone's real property to make room for a new highway, public utility, or other public project. They might take property for zoning purposes, economic development, or even a public easement (right of way).

In these instances, homeowners are entitled to compensation for their loss of land use. The compensation must be based on the land’s highest and best use. The government must first follow several different procedures before it can take property, even if it’s a partial taking. This section provides information about the government's:

• Power of eminent domain
• Limitations on that power
• Your rights under the law

Eminent Domain and Federal Law

The law of eminent domain originates in the "Takings Clause" of the Fifth Amendment to the United States Constitution. The U.S. Supreme Court helps decide major cases regarding eminent domain.

The framers of the Constitution were wealthy landowners who wanted certain guarantees against tyranny. However, they understood that sometimes land would have to be taken for the public good.

The U.S. Constitution’s Takings Clause states that "private property [should not] be taken for public use without just compensation." This only applies to private property rights and must be used for the public good.

Interstate highways, to use a common example, are often considered to be for the public good.

What Is 'Just' Compensation?

The Constitution requires that private landowners who lose their home or land due to the use of eminent domain be paid "just" compensation. What exactly does that mean?

In general, this is based on how much the landowner might expect to get in fair market value. The value of the land could be determined by many factors, including:

• Size
• Improvements
• Any resources it may have
• Suitability for desirable uses

Sometimes, the federal or local government takes land for limited periods. This tends to make valuation much more difficult.

Something different occurs with civil forfeiture of personal property. If the police can prove by a preponderance of the evidence that the property was being used for criminal activity, then the government may seize the property without compensation.

Eminent Domain and Condemnation Proceedings

The government follows a particular process when it takes private land for public use under eminent domain law. It begins with its broader expansion or public improvement plan.

Once planners determine which private land may be affected by these plans, they work with their appraisers to come up with an appropriate valuation. If the private property owner accepts the offer from the government, the transaction is fairly straightforward.

If the parties are unable to agree on a price, the dispute will be resolved in condemnation proceedings. If the government takes or lowers the value of private property without fair compensation or due process, an inverse condemnation case will resolve the dispute.

In a condemnation action, the property owner will offer their property valuation with the help of an attorney and an appraiser. One option for property owners is to dispute the forced sale by challenging the government's proposed use of the land. These challenges often fail as long as the use is determined to be proper and for the public good.

Another option is to suggest that the government’s claim is too broad. In some limited cases, this may reduce the scope of the taking. The value of the property is often the main issue when eminent domain cases go into condemnation proceedings.

What Is the Meaning of 'Public Use?'

Since invoking eminent domain requires that the taken property be used for public use, it's important to understand what that means from a legal perspective. Public use is not limited to the actual, direct use by the public, as would be the case for parks or roads. Instead, it refers to any use that gives a benefit to the public.

For instance, a parcel of land with an abandoned factory may be obtained and cleared of all structures through eminent domain proceedings. The end result may be an empty lot, but it could be argued that this benefits the community as a whole because of the aesthetic or environmental improvement from its removal.

Eminent domain can get confusing at times. Click on a link below for more details or speak with a real estate attorney if you have specific questions about your property rights.