The term eminent domain refers to the power of the government to take private land for public use. Both federal and state governments can exercise this authority. Yet this power is not unlimited. Both the U.S. Constitution and state constitutions offer protections for citizens. In order to seize private property, the government must fairly compensate the owner.
Eminent domain is not, however, the same thing as a purchase agreement. If the government can justify seizing your property under eminent domain law, the government can take it even if you don't want to sell.
Sometimes the government's use of eminent domain is a straightforward matter: the government offers the homeowner a fair price, perhaps after some negotiating, and the homeowner does not contest the taking. Other times, the government and the landowner may disagree over whether a taking has occurred, how much compensation is due, or whether the project the government is taking the property for qualifies as "public use".
If disputes arise, landowners can challenge a taking in court. Eminent domain attorneys can assist with such challenges. Attorneys can also help you negotiate a fair price.
Terms to Know
- Inverse Condemnation: This is a legal action taken against the government if formal eminent domain proceedings were not used. For example, if the government puts in a highway right in back of your property (but not on it) you may argue that the noise and pollution still constitutes a taking and is subject to eminent domain law, since you can no longer use and enjoy your backyard.
- Taking: A "taking" doesn't necessarily have to include a formal seizure of property. If the government substantially reduces or eliminates your free use and enjoyment of your property, it is a "taking" that the government must compensate you for.
The Process of Taking Property
In the planning stages of a new highway, sewer line, or other large-scale public infrastructure project, the government will identify which private parcels of land it will need to acquire. The government works with its own appraisers to determine the value of each parcel, and then offers a price for taking the property.
If the landowner is unhappy with the offer and cannot negotiate a better price, then the matter will go into condemnation proceedings. In this process (typically with the help of an attorney and an appraiser), the landowner counters the government's offer and may even challenge the validity of the proposed use of the property.
Challenging Eminent Domain
The government must provide landowners with the opportunity to receive fair notice (enough time to consider the offer and obtain legal advice) as well as the opportunity for a fair hearing. As noted above, the landowner may challenge eminent domain by initiating a formal condemnation action if they are unable to reach an agreement with the government.
The condemnation process varies by state, but typically allows both sides to present their case and to present evidence. Appeals may take several years, but seldom result in a stay of the taking (put bluntly, the land may be taken by the government while the appeal is still ongoing).
Landowners who win their appeal usually do not get to retain their land, but may be compensated financially. If the condemnation process finds that the taking of the property is not in the public's best interest and therefore invalid, the court may halt the taking of the property through what's known as an injunction.
Related Practice Areas
Check FindLaw's directory of eminent domain attorneys if you have questions about a property taking or need to initiate a condemnation proceeding.