The Eminent Domain Process

If you are a property owner in the United States there is still a possibility that the government could enact the power of eminent domain.

Eminent domain means that the government has the right to take private property if it needs to do so for the overall public good and uses the land for a public purpose. This power of eminent domain is in the fifth amendment of the US Constitution as well as in the Bill of Rights.

The fifth amendment specifically states that private property is able to be seized for public use as long as fair compensation is given for the land. So as long as the government offers a fair price they can develop any land they deem necessary for public use. And in some cases, a private commercial development considered to benefit the community can also be built on someone else’s land.

In the earlier days of eminent domain, it was mostly used to support large-scale public works operations. One of the biggest examples of eminent domain being used was the growing freeway system built after World War II. As time goes by, eminent domain is becoming more of a heated legal issue fighting for the rights of individual property owners against the rights of the government.

How the process of eminent domain works

Sometimes the term eminent domain can be interchanged with condemnation though the two are not exactly the same terms. The eminent domain process varies from state to state but the overall main steps are practically the same.

Once a local government decides it needs land to build for public use it has the responsibility of contacting the property owner to negotiate a selling price.

There are three different methods the local government may use to take a property in the process of compensation for land. This is  the actual definition of condemnation:

• If the property owner agrees with the sale price offer the local government will issue payment and the land owner then gives up the deed. This of course is the simplest process.
• Often the property owner will feel that the government has not offered a fair price. If this happens both the property owner and the local government trying to purchase the property will continue their negotiations in court to establish a fair value for the property. This process includes attorneys and professional appraisers. In this court hearing, the current property owner is able to request a jury be able to make the final decision.
• In some cases, a property owner may fight and refuse to sell the property. In this case, the local government can file a court action and post a public notice of a court hearing. In this hearing the local government needs to prove that they offered a fair price and try to negotiate and that their interest in the land is for public use. If the local government wins the case an appraiser will establish a fair market value and the property owner must take this amount of payment and face eviction. If the results of this court hearing are not agreed upon, either party is able to appeal this decision.

Government land taking

When the government decides that they need a specific parcel of property for public use it is referred to officially as taking. Within the taking process, there are different categories.

Complete Taking

That’s when the entire property is purchased by the government for public use.

Partial taking

This is when only a portion of the property is needed and as such a portion of a property is purchased. The owner of course needs to be compensated for the value of the amount of land being used. It also in turn results in the remaining property being worth less money.

Temporary taking

When a property is only needed for use for a specified period of time, this is called a temporary taking. During this period the property owner will be paid for any losses that result from the temporary taking but will remain in possession of the owner. For example, if the use of private land near a project is necessary during project construction.

Easement Taking

This can also be termed as "right of way." This describes the general right of someone to make use of someone else’s property. Most often it refers to using land for a roadway or installation of utilities. The owner of the property retains the use of the property but gives up legal ownership.

In some cases, the definition of public use has been stretched to help enforce the eminent domain and the ability of the government to take over the land. In some areas, local governments have been given quite a bit of power to build whatever they deem a benefit to the community including shopping malls, hotels, condos, and even health clubs in some areas.

There have been some states however that have put stricter measures in place to more clearly define and restrict what is considered public use to help protect property owners.

If you are facing an eminent domain process it is always very important to know your rights as a homeowner. The best way to face eminent domain is with the help of a reputable real estate attorney.

Additional: How Eminent Domain DIffers from Inverse Condemnation

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