Eminent Domain

The term “eminent domain” refers to the right of the government to seize private property, generally real estate, and repurpose the property for the public good. For instance, if the government needs to build a new highway interchange or a bridge, then they may lawfully take the private property of home and business owners whose land is needed for the completion of the project. The law requires that the government provide the property owner with “just compensation” for the loss of their property, and that the property must then be used for the public good.

Basic facts relating to the power of the government to take private property:

-Concept introduced in the Magna Carta
-Just compensation laws vary across jurisdictions
-Federal, state, county and city governments can all take property
-Seized property must be for the public’s use rather than individual interests
-Property owners may dispute the taking

The Founding Fathers saw the need for an eminent domain clause, which is why it was added in the U.S. Constitution’s Fifth Amendment. Commonly known as the “Takings Clause,” this codicil makes it lawful for the government to take private property. However, because the men who framed the Constitution also wanted guarantees against tyranny, they included the concept that the landowner was legally entitled to just compensation for the loss of their property.

Just compensation is rarely a figure that is easy to determine. Numerous formulas may be used to determine what constitutes just compensation in each unique case. Experts generally rely on the principles of the highest and best use of the property. As an example, a parcel of farmland that has lain fallow for the last few years isn’t likely to be worth as much money as land that holds a sizable residential development. However, the theory of just compensation dictates that the government must offer a figure that takes into account the highest and best use of the property. Thus, they are obligated to pay the owner as if the land was being put to its most profitable use at the time of the taking.

Governments have several budgetary concerns that must be weighed when they are undertaking large projects like roads, highways and bridges. This means that they must be watchful of how much money they offer to landowners whose property is subject to being seized. Accordingly, they do not always use the appropriate calculations when they provide property valuations to the owner. It is in the best interest of the citizen to obtain guidance and advice as well as an independent property valuation by working with a lawyer or a real estate professional.

Typically, government planners spend months designing and developing public projects. They determine which properties are involved and to what extent they must be taken in order for the project to proceed. Some land owners may lose their entire parcel while others must only sacrifice a few feet. Regardless, anyone whose property is affected is entitled to just compensation.

The government entity that is in charge of the project asks their own appraisers to calculate the value of the property to be seized. This offer is presented to the owner, who has the right to either accept it or reject it. Accepting the offer results in the exchange of the land for an agreed-upon sum of money. When the owner does not accept the offer, then condemnation proceedings are begun.

The condemnation process is a complicated one. It is best for the property owner to proceed with the assistance of a lawyer and an independent appraiser if they choose to reject the government’s offer. This is because the government will have attorneys and appraisers working with them to solidify their stance regarding the property’s value. Most ordinary citizens do not have the legal expertise and advanced real estate knowledge that are necessary to handle these proceedings by themselves.

It also may be possible for the property owner to entirely dispute the taking. That is, they may argue that the taking is not proper because the project is not actually for the public good. They may also assert that the taking is too broad, and that the government doesn’t really need as much of the property as they are proposing to seize. Once again, the citizen will need legal and real estate professionals to proceed with this type of proceeding.

The law of eminent domain is complex and confusing. While private citizens often feel like they are being unfairly targeted by the government, a number of checks and balances generally keep the proceedings honest and above board. Still, it is advisable for the property owner to obtain assistance from professionals so that they can be reassured that the government’s offer is within the confines of the law and that the property truly will be used for the public good. When the ability of the government to take property is tempered by the requirement to provide just compensation that is in line with the highest and best use of the land, then both the public and the owner of the property will benefit from the transaction.