Eminent domain is a right that is granted by the Fifth Amendment of the United States Constitution which gives the government the right to take private property for strengthening the public infrastructure. In other words, under specific circumstances federal, state, or local governments have the power of eminent domain condemnation to take and use private property for public use.
Examples of common public purposes may be for purposes such as the creation of:
- Highways;
- Schools;
- Public utilities; or
- To ensure public safety.
It is important to note that if a piece of private property is taken by the government, there must be just compensation paid to the original owner. Then the property taken through eminent domain may be used for government purposes or delegated to third parties for public, civic, or economic development purposes.
What Is the Process the Government Must Use to Take Property for Eminent Domain?
Once again, the Fifth Amendment declares that private property can be taken for public use if the owner is justly compensated. This means that as long as a fair price is paid to the owner, roads, courthouses, schools, and utilities can be built on private property.
In other words, the eminent domain process involves a balance between the government’s authority to take property for the benefit of the public and the property owner’s right to fair and just compensation.
It is important to note that the exact process a governmental agency must follow to obtain property through eminent domain is usually determined through state statutes. However, in general, the process the government uses to take property for eminent domain is as follows:
- Identify a Purpose: First, the government will identify a need to use eminent domain for a public purpose, such as building public infrastructure, parks, or public facilities.
- Courts have broadly interpreted the Fifth Amendment to allow the government to seize property if doing so serves the general public welfare, including for the purpose of economic development.
- Generally, the governmental agency will obtain necessary approvals through the adoption of a resolution or ordinance;
- Contact Property Owner: The government will then initiate negotiations with the property owner to purchase the property voluntarily.
- During the negotiation phase, the government will attempt to reach an agreement for the sale of the property with the property owner without the necessity of formal legal proceedings;
- Formal Notice: If negotiations with the property owner fail, then the government must formally notify the owner of its intent to take the property, by providing notice of the reasons for the taking and how much compensation is being offered.
- In general, the compensation offered is based on the fair market value of the property at the time of the taking;
- Condemnation: If the property owner does not accept the offer, the government may then initiate the legal process known as condemnation, which involves the government filing a lawsuit to acquire the property; and
- Just Compensation: The Fifth Amendment of the United States Constitution mandates that the government must provide “just compensation” to property owners, which means the property owner must be paid by the governmental body for the condemnation, if the government gets the property.
Once I Receive an Offer for My Property, What Happens?
Before receiving an offer on your property, a public hearing will be held for the agency to justify why your property must be taken after an offer is made. At the hearing, the agency must typically demonstrate:
- That your property is required for a public project;
- That the greatest benefit to the public will be where your property is at; and
- That they have made an offer to you.
As mentioned above, once a property owner has received an offer for their property, they may choose to either take the offer, continue negotiations, or proceed to the hearing phase. If the property owner agrees to the sale and price, the government will issue payment. Then, the property owner will relinquish their deed to the government for the public purpose.
However, property owners often do not agree with the initial offer made by the government. In these cases, the two parties will proceed to a hearing to determine what “fair value” of the property is. At these hearings, attorneys and appraisers are often involved in order to provide evidence of the fair market value for the property. Further, a property owner can even request a jury trial.
Occasionally, the property owner will continue to refuse to sell the property. In these cases, the government will then file a court action to begin condemnation proceedings and post a notice of the hearing. During the condemnation hearing, the government must demonstrate that it tried negotiating the sale with the property owner and that the takeover is for public benefit.
It is important to note that if the eminent domain case goes to court, there is a chance that the judge or jury may decrease the latest amount of compensation offered by the governmental body. However, the opposite is also true, a jury or judge may determine that a higher compensation is required to fulfill the just compensation requirement of a taking.
Once the Hearing Is Complete, What Will Happen Next?
Once the condemnation hearing is completed, a settlement is reached, or a jury comes to a decision regarding the condemnation, the government agency will then be required to pay the property owner just compensation.
In the case of a settlement, the payment will be whatever the agreement was between the governmental agency and the property owner. In the case of a jury decision, the jury will determine the fair market value of the property based on the evidence presented by both parties in court.
After being paid for the property, the property owner’s deed will then be transferred to the governmental agency for the public purpose established at the hearing.
When Will I Get Paid?
After the conclusion of a condemnation hearing, the government must pay the property owner within 30 days. At this time, title to the property will be transferred to the government. After payment has been completed the public use of the property may begin.
What Is Public Use?
Once again, the Fifth Amendment of the United States Constitution states that the government can only take private property for public use and only if the government pays the private property owners just compensation.
As such, citizens can challenge an eminent domain action commenced by the government by demonstrating:
- That the condemned property in question will not be used to enhance the public good or for a public purpose; and
- That the just compensation offered as payment for the property is not a fair market value or is otherwise insufficient.
Additionally, a property owner whose land has been condemned may dispute the public use requirement by demanding that the governmental agency seeking to take the property produce a resolution of necessity.
A resolution of necessity is a document that explains why the property is needed for the completion of a public project. In other words, the government must demonstrate what the public purpose is for seizing the property. The explanation provided in the resolution can then be disputed in court.
Examples of common public uses include building highways, roads, and schools. However, in 2005, the federal Supreme Court expanded the definition of “public use” to include private companies, such as:
- Oil companies;
- Gas companies; and
- Retail giants.
Do I Need a Lawyer for Help With Eminent Domain?
If you are facing an eminent domain action initiated by a governmental body or if you have been contacted by a governmental agency wanting to take your property, it is in your best interests to consult with an experienced real estate attorney.
An experienced real estate lawyer will be able to help you negotiate with the government for a proper award for your property, as well as guide you through the procedural rules and potential consequences of the eminent domain process.
Additionally, if your property has already been seized, a real estate attorney can also help you determine whether the government acted appropriately, and whether you are eligible for an innocent owner defense. Finally, an attorney can also represent you at any necessary in person hearing.
