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The Taking of Property for Public Use

Destruction of residential house for public use

Table of Contents:

The Government's Power of Eminent Domain

Eminent domain is the power of the government to take private land for public use. This power is limited by the federal Constitution and by state Constitutions. When the government does take private property for a public purpose, it must fairly compensate the owner for the loss.

Sometimes, the operation of eminent domain is a straightforward matter. The government provides the landowner a fair price, and the landowner yields the property to public use. At other times, however, the government and the landowner may disagree over whether a taking has occurred, and how much compensation the landowner should receive.

History of "Eminent Domain"

The law of eminent domain comes from the so-called "Takings Clause" of the Fifth Amendment. It states "[N]or shall private property be taken for public use, without just compensation."

The men who created the Constitution were, for the most part, landholders with a certain mistrust of the federal government. To protect private real estate owners from abuses by the government, the Founders limited the government's power to take property. At that time, the government action they likely saw was the taking of the land and its occupation by government.

As the country's population continued to grow, however, local governments began to place increasing controls on the use of land. Landowners believed that these restrictions prevented their use of the property, or damaged its fair market value. So, they began to argue that these restrictions also constituted a taking of their land requiring adequate compensation. At first, the courts were reluctant to hear these claims. Over time, however, courts began to recognize them, adding a new dimension to the law of eminent domain.

The Fifth Amendment "Takings" Clause

The "Takings" Clause of the Fifth Amendment has several important components. These are:

1. It applies only to private property

For example, if the government decides to change the use of some piece of public land, i.e., build a bus terminal on what had been a public park, that action would not force the government to pay citizens who used the park.

It's possible, however, that the new use might violate the rights of neighboring landowners so much that they could sue anyway, comparing the violation of their property rights with an outright taking of their land. This process, known as an inverse condemnation proceeding, is discussed below.

2. The land can only be taken for public use

This means government officials can't take private land for their own purposes. For example, a member of Congress could not take the home of a private citizen for his or her own use under eminent domain.

Sometimes, however, courts have upheld takings that ultimately resulted in a private party possessing the land. This has occurred, for example, to allow expansion of an auto plant felt to be beneficial to economic development and in instances of urban renewal, where a new neighborhood goes up in place of an old one.

3. There must be "just" compensation

Finally, the Fifth Amendment requires just compensation. Fair compensation is typically determined using the market value of the land, that is, the price for which the landowner could reasonably expect to sell the land to some other buyer.

What the land is worth depends on many things, including the size of the property and the buildings, crops, or timber upon the land. For permanent takings, courts use one of several methods to determine market value. Where the government's use of or encroachment upon the property is of limited duration or scope, the calculation of value may be trickier.

The Eminent Domain Process

In the classic case of eminent domain, the government determines that it needs certain privately owned land to create some public benefit, such as the construction of a new highway. Here is what happens, step by step:

  1. The government contacts the landowner to say they are interested in the property.
  2. The government may hire appraisers to review the land. 
  3. The government makes a financial offer to the landowner.
  4. There is a public hearing where the government explains why they are taking the property.
  5. If the parties can't agree on the value of the property, it might start what is called a condemnation proceeding. During this proceeding, the court (or jury) determines the land's fair value and whether the land can be taken.
  6. The government pays the landlord.
  7. The landlord leaves the property and title transfers to the government.

The property owner has a right to notice of the government's decision and an opportunity to respond, and to just compensation for the real property taken. 

Inverse Condemnation Proceedings

Sometimes, the government will deny that it has taken anything from the landowner. Thus, the landowner will start an action, called an inverse condemnation proceeding, asking for compensation from the government. This situation can arise in a variety of ways. 

For example, the government might engage in conduct that destroys the landowner's ability to use and enjoy the property. It may do that by building an airstrip next to the property and flying planes over it, or cutting off or polluting the flow of water to the land. The government might also prevent the landowner's access to the property with water or debris, as where dynamiting operations block the road to the landowner's property.

The government might also violate a landowner's rights through regulation. This is called regulatory taking. This can occur where the landowner buys land and builds a dance club and then the local government passes a law, banning dance clubs in the town. If the landowner's business is harmful to the public, the government's action in shutting it down maybe a valid exercise of its police powers, as opposed to a taking.

The government might also improperly restrict or diminish the property's use. A law raising minimum lot sizes from one acre to five acres robs a landowner with less than ten acres of the right to subdivide his or her property. A law denying sewer access or water access to certain plots would all but destroy their value for residential use. In these cases, the landowner could sue, arguing that the government has taken the property without paying for it.

When Has a Taking Occurred?

Another consideration in the area of eminent domain is to determine when the taking has occurred. This question becomes an issue when the government starts a plan that affects the landowner's property, such as a zoning or development plan.

If the government plans to build a highway or airport over or adjacent to the plaintiff's land, does the plan alone constitute a government taking at the time it is filed? The filing of the plan may hurt the value of the landowner's property, but the government may argue that it has not taken the land, nor infringed upon its use. Typically, such a filing alone does not constitute a taking. If the map or plan establishes reservations or limitations to the landowners' rights at the time it is filed, however, it may constitute a taking.

As our land and communities become more crowded, and governments impose further zoning and environmental regulations, cases involving eminent domain and inverse condemnation are likely to increase.

Have Questions About the Taking of Property for Public Use? Ask a Lawyer

The law of eminent domain gives the government power to act in the public interest, but sometimes the government intrudes on property rights without offering compensation. In those cases, affected landowners may have the right to seek compensation and would benefit from working with an attorney.

If you have questions about the taking of property for public use, or need help with protecting your property rights, it's a good idea to speak with a local eminent domain lawyer in your area.

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