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How the Government Takes Property

As cities and towns expand and undertake improvements, the government must often secure or acquire access to private land. Local governments as well as state and federal governments must accommodate:

  • Roadways
  • Sewer and power lines
  • Communications and other systems

Without the government's power to take property, the capability of public infrastructure would not be able to serve the needs of society.

The ability of government agencies to take private property for public use is called eminent domain. Through eminent domain, the government may take private types of property for public uses only, provided that it gives just compensation to property owners.

When a government agency wants to take private property for a public purpose, it must initiate a condemnation action. An example of government taking could include the expansion of a roadway or a new light rail station. The government can take private land for public use, including a shopping center or a park.

How the Government Takes Private Property

The government makes plans for the expansion and improvement of publicly maintained roads and utilities. In doing so, it determines which private parcels could be affected. The government will then work with its appraisers to determine the appropriate price for the necessary property interests.

When the government has established its property value estimation, it offers the landowner compensation for the property. If the property owner agrees, the government buys the land. If the property owner disputes the government's valuation and they cannot agree on a price, the matter may go to condemnation proceedings.

During condemnation proceedings, the property owner will get to offer their own valuation for the property. In most instances, the property owner will work with an attorney and an appraiser.

The attorney will protect the property owner's legal rights in the involved property, and the appraiser will work to establish the property's fair market value. The property owner may also oppose a forced sale by contesting the government's proposed use of the property.

As an alternative, the landowner may also claim that the extent of the property the government is attempting to condemn is too great and that its purposes can be fulfilled with less intrusion. The government is only allowed to invade the property rights of individuals to the extent necessary to accomplish the intended public purpose.

Value of the Property

Condemnation proceedings often focus on the value of private property being taken. For a piece of undeveloped land with a single owner and no exceptional or unusual features, establishing the property's value may be fairly straightforward. The location, zoning, and other material aspects of a property help determine its value. In urban settings, the property is likely to be developed.

A property owner may come up with a different value calculation than the government. Each party will have experts, including attorneys, engineers, appraisers, and architects.

The following factors may affect the determination of value:

  • Property size
  • Zoning
  • Existing pathways and structures on the property
  • Current use
  • Potential uses
  • Accessibility
  • Neighboring businesses
  • The involvement of tenants or leases

The property may represent the owner's livelihood. To the owner, it is worth everything they have invested in it and all that can be derived from it. The state must pay relocation expenses, including equipment to the property owner.

To the government, the relevant value is the property's market value. The market value is based on what a motivated buyer might pay to an interested seller. The valuation is also made as of a particular date. This is because property values can fluctuate over time. To arrive at one price, the determination is established as of one date.

The value determination is based on the amount of the acquisition. In some cases, the government may need to take all of the owner's property. In other cases, the government will only need a portion of the property or an easement. The value of these interests depends on the land involved, and on the effect the loss or intrusion of that land will have on the rest of the property.

Valuation Methods

When determining the value of a particular piece of property, appraisers and courts recognize three approaches:

  • Market approach: The value for the subject property is based on recent sales of comparable, nearby properties. Based on these sales, the appraiser forms an opinion as to the price the property would bring on the open market. The market approach may be inappropriate if there have been no recent comparable sales in the area.
  • Cost approach: Also called the depreciated replacement cost, this looks at how much it would cost to replace the land and existing structures, after factoring in depreciation.
  • Income approach: This considers the investment value of the property. How much one would pay at the moment of valuation in light of the property's income potential?

In general, a fair value must be commensurate with the property’s highest and best use. For example, suppose land in an urban area can be best capitalized as a shopping mall. The government wants to treat it as a wasteland so it can underpay.

Since the highest and best use of such a property allows for major commercialization, the owner of the property will argue it should be priced higher.

Time of Property Valuation

Another point a property owner may contest is the time of valuation. This can happen when the government delays its acquisition of the property in an unreasonable manner. The government's actions may cause a substantial diminishment of the subject property's value.

For example, the government cannot buy up and condemn adjacent properties, destroy them or let them decay, and then lowball the remaining property owner once their own property value has fallen as a result.

The general rule is that the government does not have to compensate a property owner until at least one of the following occurs:

  • It has taken property
  • It has made a substantial impairment of a landowner’s ability to use it

The government may argue against the above. The property owner can argue that the government's actions have made the property all but useless in the real estate market.

Condemnation proceedings derive from the simple principle that the government may secure private property to benefit the public. Due to many property uses and the volatile real estate market, condemnation proceedings can be complex. The valuation figure that the government reaches may differ from the landowner's calculations.

The eventual value may turn on the persuasiveness of the landowner's appraiser. The property owner's appraisal must meet specific legal requirements. Fair value will be based on the extent of the property taken and an analysis of the many interests involved.

The Forfeiture Process for Seized Assets

It’s important not to confuse criminal forfeiture and civil asset forfeiture with eminent domain. Seizure of property in these contexts occurs in connection with a criminal case or criminal conviction.

Personal property may also be taken without criminal charges being brought against the owner of the property. This is because certain properties, such as illegal drugs, are instrumental to a crime in and of themselves.

Under federal law and state laws, law enforcement agencies may initiate forfeiture proceedings. These proceedings can be swift and result in seized property.

Forfeiture cases often turn on criminal activity. Forfeiture laws give state and federal law enforcement great deference to taking property. This can happen without the due process afforded to criminal defendants by the Supreme Court. Federal forfeiture, as well as state administrative forfeiture, may be conducted in connection with:

  • Drug crimes
  • Money laundering
  • Drug trafficking
  • Illegal activity

For example, law enforcement may have probable cause to investigate a drug lord. The Department of Justice may seize real property and bank accounts used by such a crime boss.

A drug kingpin’s criminal defense lawyer may argue that federal agencies have not met their burden of proof for seizing the property. Court proceedings may determine whether the forfeited property must be returned to the claimant.

Is the Government Trying To Take Your Property? Get Legal Help

For anyone attempting to prove a different value for their property, legal help is a must. You may want to limit the extent of a government's intrusion into your land. The assistance of an experienced attorney can be a valuable asset in such situations. Contact a skilled eminent domain lawyer who can help you make informed and effective decisions based on the law.

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