Eminent Domain and Condemnation Frequently Asked Questions

Friday, February 10, 2017

What is eminent domain and who uses it?

Eminent Domain is the power of the government to take private property and convert it into public use. Government agencies that use eminent domain include state government agencies like the Transportation department and local agencies tied to the municipalities. “The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.” This means if the government wants your land for public use it must buy it from you at fair market rates. Usually it tries to buy your property before going through the condemnation process.

What does “public use” mean? Can eminent domain be used to give my property to a private for-profit company?

Eminent domain was traditionally used to construct new roads, public buildings, parks, and water/sewer fixtures to improve community services to the general public, i.e., “public use.” As cities matured, the public use definition was broadened to allow cities to rectify “blight” through redevelopment of decaying neighborhoods and revitalization projects for commercial areas. In some states, public use also includes condemnation for “economic development.” This use is the most controversial because it generally involves the transfer of land to private interests. As part of redevelopment plans, Government agencies can use the power of eminent domain to take private property and turn around and transfer the property to a private company. Also, certain private companies have been granted the right to acquire property by eminent domain, including railroads, energy companies and natural resource companies.

How does the eminent domain process work?

The government process for using the power of eminent domain varies from state to state. In general it follows a set of steps similar to these:

The government determines there is a need to use eminent domain for a public use purpose, and obtains the necessary approvals from the governing body (usually by the adoption of a resolution or ordinance).
The government negotiates with the property owner to buy the property.
If an agreement can’t be reached with the owner and the property is necessary for the public use project, then the government exercises its power of eminent domain to condemn the property.
If the compensation amount is still in dispute it may go to a panel of condemnation commissioners or court or both.

Can I stop the government from taking my property?

The eminent domain process can only be stopped in a limited number of ways:

Public use. The government must support its claim that the “taking” is for a valid public purpose.
The government must also support its claim that the taking of your property is a necessity. If it is taking too much land, it will fail the necessity test—those parcels may then be removed from the condemnation. This also applies to blighted property. If you can prove that your property does not meet a test for blight, you may also be relieved of condemnation.
The government must strictly follow all of the statutory requirements, including negotiating in good faith, accurately describing what property is being taken, and adhering to other procedural protections designed to protect property owners.

Inability to agree on compensation will not change the eminent domain rulings. Your property will still be condemned and you will be compensated at the fair market value determined by the courts or condemnation commissions.

Will I be penalized if I choose not to negotiate and force the government to go to court?

No. As a property owner you have the right to question the government’s purpose and force condemnation.

What if they take the part of the land I needed or wanted most and it ruins my remaining property?

Compensation in partial or full takings can be awarded for certain inconveniences and in certain circumstances. For example, compensation may be suitable if: 1) access is completely blocked or unreasonably limited; 2) use of your property is less efficient then before the taking, e.g., on a farm; and possibly for 3) loss of visibility or view but only in the case of a taking. You are unlikely to get compensated just because an adjacent property or public use building blocks your view.

Do I need a lawyer? Can’t I just negotiate with the government on my own?

You can negotiate on your own, but, depending on your knowledge of eminent domain, you might be better off having an attorney—and getting that attorney at the beginning this complicated process. The government is just a buyer in a real estate transaction–it is trying to get the most value at the lowest price and it has all of the power in the negotiation. Anything you say or information you reveal at the beginning of the process may be used to decrease the value of your property at the end. If you are not aware of all of the compensation options and all of your rights, you could miss out on getting the most money for the property you never intended to sell, or even preventing the condemnation. The government is not obligated to look out for the property owner’s best interest; it only has to make sure you are “fairly” compensated. Keep in mind that fair compensation could be at the bottom of market rates. A lawyer that is experienced in eminent domain can help you get the best price and ensure you are compensated to the full extent of the law and your rights.