What Is Eminent Domain? The Government Can Force You To Sell Your Home

eminent domain
What Is Eminent Domain? The Government Can Force You To Sell Your Home

Eminent domain refers to the power of the government to take private land for public use under certain circumstances. For example, the government may sometimes take someone’s house to make room for a new highway or a bridge.
In these instances, the homeowners typically are entitled to compensation for their loss, and the government must first follow several different procedures before it can take property. This section provides information about the government’s power of eminent domain, limitations on that power, and your rights under the law.

Eminent Domain and Federal Law

The law of eminent domain originates in the “Takings Clause” of the Fifth Amendment to the United States Constitution. The U.S. Supreme Court helps decide major cases regarding eminent domain. The framers of the Constitution were generally wealthy landowners who wanted certain guarantees against tyranny. However, they understood that sometimes land would have to be taken for the public good. The Takings Clause states that “private property [should not] be taken for public use without just compensation.” This only applies to private property and must be used for the public good.

Just Compensation

The Constitution requires that private landowners who lose their home or land due to the use of eminent domain be paid “just” compensation. But what exactly does that mean? Generally, this is based on how much the landowner might expect to get in fair market value. The value of the land could be determined by many factors, including its size and any resources it may have. Sometimes, the federal or local government takes land for limited periods, which tends to make valuation much more difficult. If the police can prove “by a preponderance of the evidence” that the property was being used for criminal activity, then the government generally may seize the property without compensation.

Eminent Domain and Condemnation Proceedings

The government follows a particular process when it takes private land for public use under eminent domain law. It begins with its broader expansion or public improvement plan. Once planners determine which private land may be affected by these plans, they work with their own appraisers to come up with an appropriate valuation. If the private property owner accepts the offer from the government, the transaction is fairly straightforward. But if the parties are unable to agree on a price, the dispute will get resolved in condemnation proceedings.

If the matter goes into condemnation, the property owner (typically with the help of an attorney and an appraiser) will offer their own property valuation. One option for property owners is to dispute the forced sale by challenging the government’s proposed use of the land, but these challenges typically fail as long as the use is determined to be “proper” and for the public good. Another option is to suggest that the claim is too broad, which in some limited cases, may reduce the scope of the purchase. But the value of the property is generally the main issue when eminent domain cases go into condemnation proceedings.

Public Use

Since invoking eminent domain requires that the taken property be used for public use, it’s important to understand what that means from a legal perspective. The term “public use” is not limited to the actual, direct use by the public as would be the case for parks or roads but refers to any use that generally gives a benefit to the public.

For instance, a parcel of land with an abandoned factory may be obtained and cleared of all structures through eminent domain. Even if the end result is an empty lot, and not everyone “uses” the land, it could be argued that this benefits the community as a whole because of the aesthetic improvement from its removal.

What Property May be Taken Through Eminent Domain?

An eminent domain action typically is applied to real property (real estate, including buildings and land), but any kind of property may be taken if done within the legal confines of the law (based on the Fifth Amendment’s Takings Clause). This includes both tangible and intangible property, such as franchises and contracts.

Property That’s Deemed a Risk

Often, governmental units — particularly at the local level — begin condemnation proceedings for private property that isn’t needed for public use, but rather has been deemed a risk to the public health or safety. This, in fact, is the more appropriate use of the term “condemnation,” although the authority or power invoked to condemn the property is that of eminent domain.

For example, the government may decided to condemn and then seize the property of an old shipyard in order to clean up asbestos and other environment pollutants. Any private property may be taken if it’s proximity to the clean-up area is deemed unsafe. In this regard, the seizure is done in the best interests of the public even if the land ultimately is never used by the public.

“Dedication” of Land

A “dedication” of land is a similar form of appropriation of private land (or an easement therein) for public use.

But instead of going through the adverse process of condemnation, the transfer of property is affected voluntarily by the landowner. A dedication may be express or implied through the landowner’s conduct and the facts and circumstances related to the property. For instance, someone who owns a parcel of property that includes access to a historical site may dedicate this portion of the property to the government. Notwithstanding, a dedication also may arise following an adverse (to the interests and/or use of the landowner) and exclusive use by members of the public under a claim of right. Such claim, by an adverse public user, is similar to a common law “adverse possession” claim between private parties and is predicated upon the knowledge of and allowance by the owner. Many states provide for both common-law and statutory dedications.

Exceptions for Certain Property

Not all property may be taken for any purpose. Many states prohibit the exercise of eminent domain for property currently being used as:
• Cemeteries;
• Gardens and orchards; or
• Factories.

A landowner can’t convert the use of property to one of these uses in order to avoid condemnation once eminent domain proceedings have begun (i.e. filing of a notice of intent).

It can be confusing trying to wrap your head around exactly what types of property may be taken in an eminent domain action. Courts won’t allow takings if they’re not for the good of the public or if the landowner isn’t compensated fairly. If you believe your property is being unjustly taken, learn more about your options by meeting with an experienced eminent domain attorney near you.

Challenging Eminent Domain

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). Additionally, there must be opportunity for a fair hearing before the award (monetary compensation) becomes final. The hearing provides a forum to determine whether or not there had been an actual taking as defined by law; whether the taking was for a public use; and/or whether just compensation had been made. If the government is unable to justify its taking and fails to offer just compensation to the property owner, the taking won’t be allowed by law (as rooted in the Fifth Amendment’s Takings Clause); but 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 is able to justify the taking of private property, it can’t just take it unannounced. Prior to any governmental action to exercise its right of eminent domain, the government must negotiate in good faith with the landowner for an acceptable price for the land. Initially, most governments notify landowners of prospective action by serving a notice of intent. The contents generally describe the parameters of the property in question, the proposed use, and an offer (in dollars) of purchase. Extensive mediation and offers/counteroffers usually precede court action. A formal condemnation action 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, depending on the type of property in question or the intended use. Generally, a landowner may contest both the proposed taking and the amount of compensation offered. Ultimately, if administrative appeals fail, the landowner may petition in court, typically claiming a violation of constitutional rights. Both sides may offer witness testimony and other evidence in support of their positions. Both sides may call attention to the fair market value (by expert testimony) of similar properties for comparison. Following court decision, appeals may take years, but generally does not stay the taking; if a landowner ultimately prevails on appeal, only money damages are generally available.

Challenging Eminent Domain: Remedies for Takings

Initially, an objecting landowner may request either or both injunctive and monetary relief. However, if the government’s action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if the objection was not well-grounded or appears to have been motivated by excessive financial interest. In cases of excessive takings (in which the landowner or landowners claim the government is taking more than it needs) or partial takings (easements), adjudication includes a determination of the percentage interest in a property which is adversely affected, and monetary award is prorated accordingly. Likewise, if the complaint is for devalued property which isn’t directly taken, but adversely affected because of governmental activity on nearby property, adjudication includes a determination as to whether other factors have devalued the property. In these cases, courts will determine the monetary difference between the devalued property and its fair market value without the alleged 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. Occasionally, subsequent actions or objections are filed years after the initial determination. This is especially 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 further decrease in residual use or enjoyment still vested in the original property owner, both injunctive and monetary relief may be available. Even if you have a very good reason for opposing a government agency’s proposed taking of your property through eminent domain, making the case on your own may be extremely difficult. Don’t fight an uphill battle; get professional help from an experienced, local eminent domain attorney today.

How the Government Takes Property

As cities and towns expand and undertake improvements to roadways, sewer and power lines, communications, and other systems, the government must often secure or acquire access to private land. Without the government’s power to do so, the size and capabilities of our public infrastructure would become inadequate to serve the needs of society. The right of the government to obtain private land for public purposes is known as eminent domain, and this right derives from federal and state constitutions and related laws. The power of eminent domain allows the government to take private land for public purposes only if the government provides fair compensation to the property owner. The process through which the government acquires private property for public benefit is known as condemnation.

As the government makes its plans for expansion and improvement of publicly maintained roads and utilities, it determines which private parcels will be affected. Once it makes that determination, the government will work with its own appraisers to determine the appropriate price for the necessary property interests. When the government has established its estimation of the property value, it may offer the landowner a particular price 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 will go to condemnation proceedings.

During condemnation proceedings, the property owner will get to offer his or her own valuation for the property. Typically, the property owner will work with an attorney and an appraiser. The attorney will protect the property owner’s legal rights respecting 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 long as the use is proper, however, this type of challenge will fail. 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. Generally speaking, the government is only allowed to invade the property rights of individuals to the extent necessary to accomplish the intended public purpose.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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