Eminent Domain Overview

Americans enjoy the right to life, liberty, and property without unreasonable government interference. But, under certain circumstances, the government can take property with or without permission. 

This article will discuss eminent domain law, which allows the government to take real property from property owners when it serves a public purpose.

What Is Eminent Domain?

Eminent domain cases concern the government's power to take private land for public use. The power of eminent domain is from the Takings Clause of the Fifth Amendment to the U.S. Constitution. This clause applies to the federal government and states, municipalities, and local governments through the Fourteenth Amendment to the Constitution.

The Takings Clause does not allow the government to take any land it wants. But it limits the government's power in eminent domain proceedings. It requires that a taking can only happen if the land is taken for "public use" and in exchange for "just compensation."

There are different categories of takings:

• A complete taking is when the government buys an entire property
• A partial taking happens when the government only needs a part of the property
• A temporary taking happens if the government only needs the property for a specific period

A regulatory taking includes more than just acquiring a property. It also includes things like:

• Zoning changes that limit the way someone can use a property
• Development plans that result in a decrease in property value

Property can also get taken through public utility easements that allow plumbing and electrical lines through private land.

It's important to note how the government's use of eminent domain differs from property seizure. With a property seizure, the government takes property after an owner commits a crime or fails to pay property taxes. The government does not pay the owner for seized property.

How Eminent Domain Works

If the government plans a public works project, it may need to get nearby private property to complete the project. For example, a state redevelopment agency may need to build roads across private land to foster economic development. The government will start the legal process of eminent domain, which is condemnation.

The details of the condemnation process will vary from state to state, but the basic steps are consistent.

• Typically, the government will first try to negotiate a deal to buy the land from the private owner. The property's value should be based on its highest and best use. The parties can avoid court if the owner agrees to the offered price. The government will issue payment in exchange for the deed for the land.
• If the owner and the government disagree on the sale price, they will go to court to determine the fair market value, which comes from each party's property appraisal.
• If the owner refuses to sell the property, the government will file a court action and post a public notice of a hearing. At this hearing, the government must prove that it tried to negotiate a sale and that the taking is for public use. The landowner will have an opportunity to object and offer evidence. It's not uncommon for both parties to present expert testimony on the valuation issue.

Defining Public Use

The government needs to prove that the project is for public use. This means the property must confer some benefit or advantage to the public. Some examples of government projects for public use include:

• Transportation projects, like roads, railroads, and bridges
• Government buildings, such as post offices
• Structures related to the water supply
• Expansion of national parks
• Preparation for war efforts and production of war materials

In 2005, the Supreme Court in Kelo v. City of New London broadened the definition of public use. It held that any structure that benefits the community is generally a public use, including shopping malls, hotels, condos, and health clubs. That meant the government could justify public redevelopment by transferring property from one private party to another.

In 2021, the Supreme Court expanded the definition again. It allowed a private pipeline company to use eminent domain powers granted under the Natural Gas Act to seize state-owned lands for private development.

Land use laws continue to evolve around private property rights. Different public projects can affect real estate in myriad ways. Condemning authorities may need to follow different formalities in every case of appropriation. In almost all cases, the United States Constitution sets limits. It requires that the property owner receive money for the property's value that's subject to condemnation proceedings.

Get Legal Help With Eminent Domain

If the government is considering taking your property, you may have the right to challenge it through an inverse condemnation case. Get professional legal advice from an experienced eminent domain attorney. They can protect your legal rights to private property.