Condemnation is a process where private property is taken for public use pursuant to the power of eminent domain. Prior to the taking of the property, it may be condemned, which means that it has been marked for destruction or modification so that it may be used for a public purpose.
An example of a property being condemned may be when a residential home is cleared to make way for a wildlife reservation. In this particular example, the residences are condemned so that the land they sit on can serve the public use of a more natural environment.
What is Meant by Just Compensation?
Just compensation is not an exact concept. Just compensation typically means that the highest price the property would bring if it was for sale in the open market for a reasonable period of time, assuming that the buyer has knowledge of all uses and purposes for which it may be used. When determining the value of a property, the court will consider the highest and best use of the property.
This means that if a property will be more valuable if the use was changed, then the individual would be entitled to be compensated accordingly. In other words, just compensation is usually measured in terms of loss to the owner, not the gain of the government.
The amount of the loss will be measured according to the fair market value standards at the time the taking occurs. Some courts have calculated just compensation by determining the value of the land at the time it is condemned and before the public usage begins.
The court will then attempt to estimate the value of the land after the public use begins. The difference between these two figures will be the approximate amount of just compensation.
Who May Condemn Property?
Pursuant to the Takings Clause of the United States Constitution as well as the principles of eminent domain, the government is permitted to take private property for the purpose of public use. The government, however, is required to reimburse the property owner with just compensation for the loss of their property.
A private entity, including corporations or charities, can also condemn property if the property will be used for a public purpose. They are required to fairly and justly compensate the property owner for the taking.
Private condemnation or land, however, is rare because the majority of private entities will obtain land for a pirate use rather than a public use. A taking for a public purpose is more commonly done by a state or federal entity.
What Constitutes a Taking?
A taking by the government which results in the condemnation of private property includes confiscation or physical occupation of private property or government regulation which results in no economically viable use of the land.
A taking does not occur if the occupation advances a substantial government interest, which may include preserving natural resources. In addition, a property owner may not be entitled to just compensation if their occupation does not result in any fundamental change in the ownership of the property.
Why is My Property Being Taken?
The government is permitted to take property for public use. The public use may involve an issue of public health and safety.
For example, the government may remove blight, property which is dirty or in a state of disrepair. Public use may also refer to public ownership.
For example, a government may take property in order to build a library, military base, or highway. These types of structures are usually run by a government, which provides a justification for taking private property.
One of the most controversial uses of eminent domain is allowing a private party to take the property of another private party in the name of public good. The Supreme Court has held that economic development by private parties may be a justification for eminent domain.
This ruling, however, has been limited by numerous state laws and federal regulations.
What is an Illegal Taking of My Property?
The government is not permitted to take property for a non-public use. This applies mainly when the government takes property from one private party and gives it to another private party for their own private use.
For example, suppose a city takes a house from A and gives it to corporation B so it can build an office building. This taking does not benefit the public or serve a public purpose in any manner.
Therefore, it is not a public use which is permissible by the Constitution.
What is a Taking?
When most individuals hear the term eminent domain, they imagine the government seizing title to a property. A taking, however, can be any type of permanent interference with the property.
Such as, for example, if the government builds a military base close to a residential neighborhood. Courts have ruled that the homeowners were entitled to receive just compensation because the government plans that were flying overhead interfered with the homeowner’s use of their property so much that it was considered a taking of the property.
Although the government did not physically seize control of the homes, the planes that flew over were so loud and so frequent that the homeowners were deprived of the use of their property.
How Do I Know if My Property has been Condemned?
In most cases, an individual will be aware if their property has been condemned because they will receive a written offer to acquire the property for money from a government agency. Another way an individual may be notified is when they are served with a summons and complaint in condemnation.
How Can I Resist The Condemnation of My Property?
Whether or not an individual should resist the condemnation of their property depends upon the facts about their property and whether the amount of compensation offered to them is sufficient to adequately compensate the individual for the loss of their property. There are two ways in which an individual may resist a condemnation proceeding.
First, the individual may resist the taking of the property if it is not for a public use or public necessity. The second option is to demand more money if the condemning agency has not offered the individual just compensation.
In addition, there are certain procedures which are required to be followed prior to a property being taken. Although the exact requirements vary by state, the procedures will follow the same basic steps, including:
- The government should attempt to negotiate with the owner of the property prior to throwing them out;
- The government is required to petition the courts to ensure due process of law;
- Notice of the taking must be given to all persons with interest in the property. This will be more difficult if there is more than one owner;
- A hearing must be held in order to determine if the government has the authority to proceed with the taking. State law will control the outcome of the case; and
- Just compensation must be determined.
I Want to Resist The Condemnation of My Property – Do I Need a Lawyer?
Although you are not required to have a lawyer to resist the condemnation of your property, it is a complex area of law which, as noted above, varies by state. If you choose not to hire a lawyer, you risk not receiving adequate compensation for your property.
An experienced real estate lawyer will be invaluable to you if you plan on resisting a condemnation proceeding. Your lawyer can advise you regarding how strong your case is and how to handle resisting the condemnation.
