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Eminent Domain Overview

American citizens enjoy the right to life, liberty, and property without unreasonable government interference. However, the government can, under certain circumstances, take property with or without permission. Read on to learn more about the government process of taking private property, known as eminent domain.

What Is Eminent Domain?

Eminent domain is the government's power to take private land for public use under certain circumstances. The power of eminent domain is defined by the "Takings Clause" of the Fifth Amendment to the U.S. Constitution, which prohibits the federal government from taking private property for public use "without just compensation." This clause is also applied to state and local governments through the Fourteenth Amendment to the Constitution. The Takings Clause does not give the government permission to take any land it wants. On the contrary, it serves as a limit on the power of the government by requiring that a taking can only occur if the land is for "public use" and in exchange for just compensation.

When the government acquires private land, this is known as "taking," in contrast to a property seizure that occurs when the property owner commits certain types of crimes or abandons the property. There are different categories of takings:

  • A complete taking is when the entire property is purchased.
  • A partial taking occurs when only a portion of the property is needed.
  • A temporary taking occurs if the property is needed only for a specific period of time.

It's worth noting that the definition of "taking" includes more than just the acquisition of property by the government. It also includes government action that impacts the land in some way, including zoning or development plans that change the way the property can be used or result in a decrease in the value of the property.

How Eminent Domain Works

If the government is planning an expansion or public works project and needs to acquire private property to complete the project, the government will commence the legal process of eminent domain, which is known as condemnation. The details of the process of condemnation will vary from state to state, but the basic steps are consistent.

Typically, the government will first attempt to negotiate a deal to buy the land from the private owner. If the owner agrees to the offered price, the parties can avoid court altogether. The government will issue payment in exchange for the deed for the land. If the owner and the government disagree as to the sale price for the property, the parties will attend a court hearing to address the contested issue of the fair market value of the land.

If the owner refuses entirely to sell the property, the government will file a court action and post a public notice of the 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 be given the opportunity to object and offer evidence. It's not uncommon for both parties to present expert testimony on the issue of valuation.

Defining "Public Use"

In order to prevail in an eminent domain or condemnation action, the government will need to demonstrate that the project in question is for "public use." This meant that the property to be taken 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, like aquifers
  • Expansion of public and national parks
  • Preparation for war efforts and production of war materials

In 2005, the Supreme Court considerably broadened the definition of “public use” when it held that the definition included any structure that was intended to generally benefit the community, including shopping malls, hotels, condos, and health clubs.

Get Legal Help with Eminent Domain

If you are facing an eminent domain case or the government is considering acquiring your property, you may have the right to challenge the taking. In order to understand your legal rights and options, get professional legal advice from an experienced eminent domain attorney or learn more about state-specific laws on our eminent domain legal answers page.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified real estate to help you navigate land use issues including zoning, easements and eminent domain.

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