All property owners have heard of eminent domain. Most owners don't understand what eminent domain means, except that it is a government intrusion onto property rights. Eminent domain refers to the government's power to take private land for public use. Federal, state, and municipal governments have this authority.
The United States Constitution protects property owners from government abuse of this power. The Fifth Amendment provides that no private property may be taken for public use, without just compensation. The U.S. Supreme Court has ruled this applies to all governments at every level. Eminent domain law requires fair compensation for any property, and the owner must have the opportunity to challenge the taking.
What Is Government Taking?
There are three basic types of government taking. Not all result in the complete taking of your property. The notice will let you know the nature of the public project and the nature of the taking.
- Physical taking is the one most people are familiar with. The condemning authority takes the entire property for government use. Partial takings for an easement or placement of a utility pole are also common.
- Regulatory takings, also known as constructive takings, deprive owners of the use of the property without a physical loss. Zoning restrictions are a type of regulatory taking since they reduce the property's valuation.
- Pro tanto takings occur when a government action has a substantial interference on your use of your property. An example might be if your property abuts a public roadway. The city regrades the street and places a storm drain at the end of the road, causing your property to flood in rainy weather. There was no actual taking, but the action has interfered with your property use.
Public Use and Private Property
The eminent domain process begins when the government needs an area for public use. For instance, a freeway may be too narrow for current traffic, and the new roadway will expand into the nearby neighborhood. An eminent domain action begins with a notice of condemnation, letting residents know the area is being taken for public use.
Sometimes, the government's use of its power of eminent domain is straightforward. The government offers the homeowner a fair price, there is some negotiating, and the homeowner accepts the initial offer. Other times, the government and the landowner disagree about the property's fair market value or whether the project the government is taking the property for qualifies as public use.
The Public Use Requirement
Eminent domain cases have provided some guidance about the public use requirement, but it is not as clear as eminent domain law would like.
Early case law defined public use as benefiting the general public rather than a small group of individuals. Takings for roads, parks, or power plants meet this definition. However, as the government does less building on its own and provides more money to private developers, the public use definition becomes murky.
In Kelo v. City of New London (2005), the city exercised eminent domain over a neighborhood so that a private development company could build a riverwalk business and shopping district. The Supreme Court ruled 5-4 that the proposed development would provide enough of a public benefit to qualify as public use under the eminent domain requirements.
If the owner disagrees with the government's estimate of the property's value and cannot negotiate a better price or additional compensation, the matter goes into condemnation proceedings. The landowner may counter the government's offer and may even challenge the validity of the proposed use of the property.
In a regulatory or pro tanto taking, where zoning or government action diminishes the property's value, the owner must file an inverse condemnation action. In an inverse condemnation case, the owner must show that the property had a particular use or value before the government's action and how the remaining property value has decreased.
Eminent domain proceedings can take months or years to challenge in court. Whatever construction or building was underway will likely continue unless the property owner can obtain an injunction against the developer. Property owners should seek the help of an eminent domain attorney as soon as possible after learning of a possible condemnation action.
Government agencies must give reasonable notice of a condemnation action. Property owners and the community must have the opportunity to challenge the taking in court. Eminent domain lawyers can help at every stage of the process. During the initial consultation, look for an attorney with a background in local real estate who knows the community.
Check FindLaw's directory of eminent domain attorneys if you have questions about a property taking or need to initiate a condemnation proceeding. Most will be happy to give you a free case evaluation and work on a contingency fee basis.