Challenging Eminent Domain

The use of eminent domain allows the government to deprive homeowners of property rights in certain cases. An aggrieved party who objects to a government taking must have an opportunity to:

• Receive fair notice (a reasonable time to obtain legal advice and prepare a formal objection)
• Get a fair hearing before the award (monetary compensation) becomes final

The hearing provides a forum to determine:

1. Whether or not there had been an actual actual taking as defined by law;
2. Whether the taking was for a public use; and/or
3. Whether just compensation had been made.

The government may be unable to justify its taking by failing to offer fair compensation to the property owner. In this situation, the taking won't be allowed by law, as rooted in the Fifth Amendment's Takings Clause of the U.S. Constitution.

The U.S. Supreme Court interprets the Takings Clause to require just compensation. Even with the Supreme Court’s protections of private property, challenging eminent domain is no easy task. The following information will help you understand the process of challenging an eminent domain taking.

Notice of Eminent Domain

No matter how well the government justifies the taking of private property, it can't take it unannounced. That would amount to eminent domain abuse.

Prior to any governmental action to exercise its right of eminent domain law, the government must negotiate in good faith with the landowner for an acceptable price for the land. Most governments notify landowners of prospective action by serving a notice of intent. The contents will often describe:

• The parameters of the property in question
• The proposed use (e.g. a public purpose or economic development)
• An offer (in dollars) of purchase commensurate with a fair valuation

Extensive mediation and offers/counteroffers will precede court action. A formal condemnation action by the state, local government, or federal government only follows if an agreement can't be reached.

Hearings and Determining the Necessity of a Taking

Not all condemnation proceedings are the same. State laws differ on the number of hearings and the procedural structure of each. The government’s power of eminent domain depends on the type of property in question or the intended use.

In general, a landowner may contest both the proposed taking and the amount of compensation offered. If administrative appeals fail, the landowner may petition in court by claiming a violation of constitutional rights.

Both sides may offer witness testimony and other evidence in support of their positions. They may call attention to the fair market value of similar properties for comparison by expert appraiser testimony.

Following a court decision, appeals may take years but don't often stay (hold off) the taking. If a landowner prevails on appeal, monetary damages can be their only option.

Challenging Eminent Domain: Remedies for Takings

An objecting landowner may request either injunctive (stop order) and/or monetary relief. If the government's action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if either of the following apply:

• The objection was not well-grounded
• The objection appears to have been motivated by excessive financial interest against the government’s rights

A takings adjudication includes a determination of both:

• The percentage interest in a property that is adversely affected
• A monetary award to be prorated accordingly

These determinations are made in cases of:

• Excessive takings, in which the landowner claims the government is taking more than it needs for a public project
• Partial takings, in which a portion of a property is taken, such as with a public easement

A complaint may concern a devalued property that isn't taken but affected in an adverse manner because of a partial taking. For example, a public easement may assign a portion of private property for public use. Because of the partial taking, it may be difficult to conduct redevelopment of such a real property.

In such a complaint, adjudication includes a determination as to whether promoting the public good has devalued the property. In the above example, a small business owner may show that their private development project has been hindered in scope. They may be able to recover some of the fair value of the property lost.

In all cases, courts determine the difference between:

• The devalued property
• Its fair market value before the adverse effect

Compensation is required, effective from the date of the alleged taking. Payments not made at that time accrue interest to which the landowner is entitled.

Subsequent actions or objections can be filed years after the initial determination. This is often true in the case of partial takings. Over time, a government entity may engage in additional activity that exceeds in scope of the initial taking. If this causes a further decrease in use or enjoyment by a private property owner, both injunctive and monetary relief may be available.

Challenging Eminent Domain Case? A Real Estate Lawyer Can Help

You may have a good reason for opposing a government agency's proposed taking of your property through eminent domain. Making the case on your own may be difficult, though. Don't fight an uphill battle. Instead, get professional help from an experienced eminent domain attorney.