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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. Learn more about the process known as eminent domain.

What Is Eminent Domain?

Eminent domain is the government's power to take private land for public use. The power of eminent domain is defined by the "Takings Clause" of the Fifth Amendment to the U.S. Constitution. 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 limits the government's power. It requires that a taking can only occur if the land is being taken for "public use" and in exchange for "just compensation."

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

A "taking" includes more than just acquiring a property. It also includes things like zoning changes that limit the way a property can be used or development plans that result in a decrease in property value.

It's important to note how the government's use of eminent domain is different 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 is planning a public works project, it may need to acquire nearby private property to complete the project. The government will start 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 on the sale price, the parties will go to court to determine the fair market value. The value is determined by each party's appraisal of the property.
  • 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 issue of valuation.

Defining "Public Use"

The government needs to prove that the project is for a public use. This means 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
  • Expansion of national parks
  • Preparation for war efforts and production of war materials

In 2005, the Supreme Court broadened the definition of “public use." It held that any structure that was intended to generally benefit the community was a public use, including shopping malls, hotels, condos, and health clubs.

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.

Related Resources

Get Legal Help with Eminent Domain

If the government is considering acquiring your property, you may have the right to challenge the taking. Know your legal rights. Get professional legal advice from an experienced eminent domain attorney.

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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