The Taking of Property: Public Use

The taking of property for public use sounds like something out of a novel or a Hollywood movie, but it is a genuine concept that is built in to the United States Constitution. Accordingly, it is important for any private citizen or business owner to be aware of the government’s power in this respect so that they will know how to respond should the situation ever arise.

The taking of property for public use is most often referred to as “eminent domain.” This refers to the power of the government to acquire privately owned land, real estate and other items for the benefit of the public. Codified in the U.S. Constitution, eminent domain is also drafted into state constitutions and the laws of various counties and cities across the country. Consequently, it is possible for nearly any government agency to seize private property.

However, they cannot do so without offering “just compensation” to the property owner. This typically means that the government offers to buy the property at fair market value. If the owner agrees to the price, then it can be a relatively straightforward transaction. In reality, eminent domain actions are far more complicated. That’s because the owner has the right to negotiate the price or even to dispute the taking.

The principle of eminent domain in the U.S. is predicated on a single phrase in the Fifth Amendment of the Constitution. This clause merely says that no property will be taken for public use without just compensation. The founding fathers who drafted this amendment were landowners themselves. After a lifetime of mistreatment by the British government, they were anxious to protect themselves and other men of property from suffering similar abuses at the hands of the new American government. Accordingly, they proactively ensured that no one could be deprived of property without being adequately paid for it.

When the Fifth Amendment was drafted, the government likely envisioned acquiring private land for the express use of and occupation by the government. Things changed as communities grew larger and the population exploded. Citizens began to see that when the government took property that was near or adjacent to their own, it had the power to affect the value and usefulness of their property. Eventually, American courts had to acknowledge that eminent domain needed to encompass more than just the outright taking of property for public use.

The concept that the property can only be used for the public good is a central one. It is not lawful for a town mayor or a U.S. congressman to simply take property belonging to their constituents for their own use or enrichment. Instead, any land or other property acquired in an eminent domain action must be of benefit to at least a portion of the general public.

Frequently, this means that the government takes land or other property to complete a project like:

-Building a public school
-Constructing a new highway
-Widening a busy roadway
-Adding a water treatment plant
-Putting in a park
-Making room for a new police station

All of these are concrete representations of “public use.” A park or a school can enhance the livability of the surrounding community while a new highway or wider road can ease continual traffic congestion. A water treatment plant ensures public health while a new police station guarantees a safer neighborhood. However, the government can also take property for less tangible purposes.

Courts are now more frequently ruling in favor of government agencies that take property in an effort to stimulate the local economy, relieve unemployment or ensure more efficient operation of the municipality. This means that the property that is acquired may ultimately end up in private hands. For instance, a parcel of land could be taken by the government, and then turned over to a private corporation that wants to build a new business park. The land has essentially gone from one private owner to another with the government acting as an intermediary. However, because the new business park is likely to stimulate the local economy, the government can argue that the taking of the property was for the good of the public.

The taking of property for public use is rarely a black-and-white matter. It is a complex situation that is fraught with legal questions and gray areas. This is why it is vital for property owners to consult with legal and real estate professionals who understand the finer points of eminent domain after receiving a notice of intent from a government agency. With the assistance of these professionals, owners of private property can ensure that the taking is justified, that it will result in a benefit to the public and that they receive just compensation for their loss.