September 24, 2017

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Eminent Domain Law

Eminent domain is the power of governments (and some quasi-public agencies and non-governmental organizations) to take private property for public use. The power may also be exercised by private persons or corporations providing services or benefits to the public. Under the Fifth Amendment (5th Amendment) of the U.S.

Constitution, property owners are entitled to just compensation for property taken by eminent domain. The Fourteenth Amendment (14th Amendment) guarantees just compensation on the state level as well. Just compensation is generally considered to be fair market value of the property at the time of taking.

Eminent domain traditionally has been used to create such things as public roadways, bridges, libraries, schools, and government buildings. In Kelo v. City of New Landen in 2005, however, the U.S. Supreme Court ruled that eminent domain could also be used in cases of for-profit development of real estate, if needed, to stimulate economic growth in a community.

Actions similar to eminent domain:

  • Condemnation – often used synonymously with eminent domain, but it really refers to the taking of private property not for public use but because it is a risk to public safety or health. The power to invoke condemnation is the same as that of eminent domain.
  • Dedication – an appropriation of private land for public use usually given voluntarily by the landowner, rather than instigated through the normal channels of eminent domain.

A “taking” does not necessarily involve a formal transfer of property. It can also derive from a destruction of property or an interference with enjoyment of property that is so severe that it in effect is a taking.

Other forms of takings:

  • Partial takings occur when only a portion of a property is affected, and the owner receives proportional compensation.
  • Constructive takings, or inverse or reverse condemnation, occurs when activity on governmental property depletes a neighboring property of value, and the property owner receives compensation.
  • Temporary takings are limited in duration, and the owner can receive compensation for temporary deprivation or impairment of the property.

Eminent Domain/Condemnation Process

The steps in the eminent domain process include:

  • The government sends you a letter expressing interest in your property and naming the government project.
  • Your property is appraised to determine the fair market value.
  • The government will offer a specific amount for your property.
  • If you accept, you will sign releases waiving your right to sue the government.
  • If you do not accept, the government will proceed to court in an eminent domain proceeding.

The above is a simplified explanation of the eminent domain process. The details vary by state. Contact an eminent domain law firm if you find yourself facing an eminent domain situation. The governmental agencies likely to only offer to pay you lowball offers if you are not properly represented by an eminent domain attorney.