The United States Constitution permits the government to take and use the property for public purposes if it pays a just compensation to the landowner. This is known as eminent domain. It is common for government agencies to take part of a landowner’s property for street widening or highway construction projects. Generally, state and federal governments delegate eminent domain authority to local governments and municipalities.
If multiple people, such as with joint tenancy or tenancy in common, own the property, then the government will compensate each owner for the percentage that they own.
Why Does the Government Have the Power of Eminent Domain?
Public infrastructure can be strengthened through eminent domain condemnation by local, state, and federal government agencies. In other words, they can take and use private property for public purposes. Highways, schools, utilities, or public safety are examples of such purposes. In some cases, eminent domain has become a tool used by government agencies to transfer private property from one owner to another.
Can I Stop the Government From Seizing My Property?
The Constitution’s Fifth Amendment declares that the government can only take private property for public use if the government pays the private property owners just compensation. Citizens can resist the government’s power of eminent domain by showing one of two arguments:
- The property in question will not be used to enhance the public good
- That the compensation offered is not sufficient.
The first argument can be made by demanding that the governmental agency seeking to take the property produce a resolution of necessity. In a resolution, the government explains why the property is necessary to complete a public project. The explanation provided in the resolution can be tested in court.
What If The Compensation Offered Isn’t Enough?
Government compensation for taking private property needs only to be “just.” According to the Supreme Court, “just” means the property’s market value at the time of the compulsory taking. In any case, it may be wise to contest the amount offered since government agencies rarely offer fair market value on the first try. Bartering with the agency may increase the amount offered. The jury may decrease the compensation if the case goes to court.
Does the Government Exercise Eminent Domain When My Property Is Damaged or Confiscated By the Police?
The destruction or confiscation of property by the police during an investigation or pursuit of a criminal falls under the government’s police powers, not its eminent domain powers. Yet, most states have policies requiring compensation for third parties whose property was damaged, destroyed, or taken by police.
What Is a Public Purpose for Eminent Domain Matters?
Private property can only be taken under eminent domain if the government can show that it will be used for a public purpose. Generally, the government is given a lot of latitude when it comes to determining what constitutes a public purpose. Likewise, courts are usually unwilling to question the reason the government cites for taking your land. For example, the government will seize someone’s property to build a government building. In this case, this would be considered a government taking, and the government must provide the owner with compensation.
How Am I Compensated When a Portion of My Property is Taken?
If a portion of your property is taken by eminent domain, you are entitled to:
- Just compensation for the value of the property taken
- Any damage to your remaining property
Just Compensation in Eminent Domain Matters
According to the Constitution, the government cannot take your land, or a part of it, without just compensation. To receive “just compensation,” the government must pay you “the market value of the property at the time of compulsory taking” for the land they take from you and use for public purposes. Following a seizure of a person’s property by the government, they usually appraise the property taken and notify the owner of the compensation they will receive.
How Is Fair Market Value for the Property Determined?
If the government compensates someone for property taken, they will give the fair market value at the time of the taking. Appraisals determine fair market value. Comparative properties that were previously sold in the area will be compared to the property to be taken. In addition, the court will consider the following:
- The history of economic development in the area
- The proximity of the taken property to other properties with similar uses
- The existence of specific plans for the use of the land
The court will also consider location, frontage, depth, improvements, and previous prices for similar parcels. In addition, various federal, state, and local statutes help establish the property’s fair market value.
What Are Severance Damages?
Severance damages are compensation for damage caused by the severing of your property. As a general rule, severance damages are the amount of damage to the remainder of your land when you lose a portion. Damages can include:
- Loss or reduction of access to your remaining land
- Construction, maintenance, and use of the land taken, which reduce the value of your remaining land
- The aesthetic value of your remaining land is reduced because of the taking
Am I Entitled to Severance Damages?
You are entitled to severance damages if taking your land reduces the value of your remaining land. Nevertheless, you may not receive severance damages if the value of your remaining land remains the same or increases due to the taking. You cannot speculate or factor in future value when calculating severance damages.
What Alternatives Exist to Eminent Domain?
Local governments, developers, and landowners have found alternatives to eminent domain throughout the United States. Examples include:
- Negotiated Purchases: The private parties may meet and contract a sale of the property in question without the intervention of any government agencies. Hiring an experienced eminent domain lawyer is highly recommended for this type of transaction.
- Leases: The private parties may meet and agree to a lease where the existing landowner rents the property to the other party without the intervention of any government agencies.
- Joint Ventures: A joint venture allows the landowner to make a greater profit by participating as a co-developer. This can be completed without the intervention of any government agencies.
- Land Swaps: The developer can purchase another property that the landowner expresses interest in and then swap the properties. No government involvement is required.
The Government Took My House, and a Shopping Mall was Built Over it by a Private Company. Is This Legal?
In 2005, the Federal Supreme Court ruled 5 to 4 that it was “public use” for governments to take property from one owner and give it to another. However, the decision proved immensely unpopular, and many states have passed laws or constitutional amendments restricting the use of eminent domain. In 2006, President Bush issued an executive order restricting the federal government’s eminent domain powers to public use.
Do I Need a Lawyer for My Eminent Domain Problem?
You may be entitled to just compensation and severance damages if a portion of your land is taken by eminent domain. A real estate attorney can review the taking of your land and advise you of your rights and remedies. Your lawyer can also represent you in court.
